Alcala v. OrtegaAlcala v. Ortega
Haley R. Grant (Blaine T. Mynatt, with her on the brief), of Mynatt Springer P.C., Las Cruces, New Mexico, for Defendants-Appellees.
Before HARTZ, PHILLIPS, and EID, Circuit Judges.
PHILLIPS, Circuit Judge.
This appeal arises from the fatal shooting of Diego Eguino-Alcala during a standoff with a deputy sheriff from Doña Ana County, New Mexico. The Personal Representative of Eguino-Alcala’s estate (the “Estate”) appeals the district court’s orders granting summary judgment on all federal claims. The district court awarded qualified immunity to Deputy Sheriff Arturo Ortega, which necessitated the dismissal of the Estate’s associated claims against Deputy Ortega and the Board of County Commissioners of Doña Ana County under
BACKGROUND
I. Factual Background1
On October 4, 2020, Eguino-Alcala drove a car that was involved in an accident in Las Cruces, New Mexico. At about 10:04 a.m., a bystander called 911 to report the crash. Around the same time, several other bystanders tried to assist Eguino-Alcala, who was knocked unconscious by the automobile crash. About then, another caller advised that a “male” had retrieved a rifle from the back of his trunk and pointed it at the crowd.2 But by 10:10 a.m., a caller reported losing sight of the driver (later determined to be Eguino-Alcala), who had regained consciousness and fled on foot. A minute later, dispatch radioed that “the subj[ect] with [a firearm] went n[orth] on main [wearing] white pants [and a] black shirt[.]” App. vol. I, at 99. And at 10:12 a.m., dispatch radioed that another caller had said that the shotgun was in a silver vehicle. Dispatch then radioed yet another caller’s report that a male had a firearm. Moments later, a 911 caller stated that a “male [in a] white shirt [with] blue jeans [had] brandish[ed] a gun.” Id.
Deputy Ortega heard the report of a car crash when he was home for lunch. He immediately drove to the accident location, where “an older gentleman” standing on South Main Street hurriedly approached the deputy’s patrol car while pointing and shouting about the incident. OIS Interview at 0:02:43–0:02:55.3 He told Deputy Ortega the following information:
- A man has a gun;
- The man had pointed the gun at people;
- The man ran “that way” (gesturing toward the opposite direction of South Main Street); and
- The man wore a white shirt.
Deputy Ortega turned his car around and drove to Bell Avenue.5 He turned onto Oak Street, where he turned again and drove to a ditch bank on East Union Street. There, Deputy Ortega spotted a man matching the description (later determined to be Eguino-Alcala) running west toward Oak Street. In pursuit, Deputy Ortega drove back to Oak Street. He parked his vehicle at the dead-end of Oak Street and got out to look for the running man. While standing on Oak Street, Deputy Ortega saw Eguino-Alcala “run across Oak and onto Manso [Avenue].” App. vol. I, at 103. He returned to his patrol car to pursue Eguino-Alcala.
Deputy Ortega drove a block down Oak Street and turned right onto Manso Avenue. After completing the turn, his forward-fastened dashcam video shows Eguino-Alcala in the shadow of a parked ambulance and running away from it. BN 2787 at 0:09:17. As Deputy Ortega neared the ambulance, its driver stepped out of it and excitedly gestured toward the fleeing Eguino-Alcala.
Deputy Ortega pulled alongside Eguino-Alcala, stepped out of the patrol car, aimed his firearm at Eguino-Alcala, and commanded him to halt. Id. at 0:09:20–0:09:28; App. vol. I, at 103. Eguino-Alcala stopped but turned his body sideways to the deputy and hunched over with his left hand on his knee and his right arm and hand blocked by his body from the deputy’s view. BN 2787 at 0:09:24–0:09:32; BN 5396 at 0:00:06. Deputy Ortega repeatedly commanded Eguino-Alcala to “get on the ground” and “put your hands up.” BN 2787 at 0:09:26–0:09:32; App. vol. I, at 104. Eguino-Alcala failed to comply. App. vol. I, at 104, 236–37; Ortega Dep. at 0:28:37–0:29:12; BN 2787 at 0:09:30–0:09:33. After about six seconds, Eguino-Alcala quickly twisted to his left and swung his right hand up with his index finger pointing, as if drawing a gun. App. vol. I, at 104; BN 5399 at 0:00:11; BN 5396 at 0:00:23.
Deputy Ortega fired nine shots, and his dashcam video shows all nine cartridges ejecting.6 This enables us to see exactly what Eguino-Alcala was doing at the deputy’s first shot. We note that the video shows Eguino-Alcala beginning to twist his body upward toward Deputy Ortega before the deputy fired his first shot. BN 2787 at 0:09:34; BN 5399 at 0:00:14. From that shot, the ejected cartridge soon crosses the video screen. BN 2787 at 0:09:35; BN 5399 at 0:00:15. Of Deputy Ortega’s nine shots, three struck Eguino-Alcala. BN 5399 at 0:00:12–0:00:36; BN 2787 at 0:09:34–0:09:38. He died from his wounds. With Eguino-Alcala no longer posing a threat, law enforcement officers were able to safely determine that Eguino-Alcala had no firearm.
After the fatal shooting, the Estate sued Deputy Ortega and the Board in New Mexico state court, asserting only state-law claims. The Estate later amended its complaint to include claims for excessive force and municipal liability under
Deputy Ortega moved for summary judgment on the Estate’s excessive-force claim based on qualified immunity.7 Alcala v. Ortega, No. 2:22-CV-00755-WJ-GBW, 2023 WL 7222867, at *1 (D.N.M. Nov. 2, 2023). The district court granted summary judgment against the excessive-force claim. Id. at *1, *10. First, the court concluded that Deputy Ortega did not use excessive force. Id. at *7–9. In doing so, the court examined the three factors set forth in Graham v. Connor, 490 U.S. 386 (1989). The court ruled that Deputy Ortega’s actions were reasonable under the totality of the circumstances. Id. It emphasized that Eguino-Alcala’s sudden movement had caused Deputy Ortega to “reasonably perceive[] an immediate and lethal threat.” Id. at *7. Second, the court concluded that Deputy Ortega’s use of deadly force did not violate clearly established law. Id. at *9. For these reasons, the district court awarded Deputy Ortega qualified immunity and granted summary judgment on the excessive-force claim. Id. at *9-10.
Then the Board moved to dismiss the municipal-liability claim. The Estate conceded that this claim must fail given the district court’s summary-judgment order in favor of Deputy Ortega, but it still opposed dismissal by contesting the order’s reasoning. The district court dismissed the municipal-liability claim, remanded the state-law claims to state court, and entered final judgment. The Estate timely appealed the
DISCUSSION
I. Legal Standard
This appeal turns on whether the district court erred by granting Deputy Ortega qualified immunity against the Fourth Amendment excessive-force claim. “The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). This defense protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). And “existing precedent must have placed the statutory or
We review de novo a district court’s grant of summary judgment under qualified immunity. Stonecipher v. Valles, 759 F.3d 1134, 1141 (10th Cir. 2014). We affirm a granted motion only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
We have instructed courts to be “cautious on summary judgment to ensure that the officer is not taking advantage of the fact that the witness most likely to contradict his story—the person shot dead—is unable to testify.” Pauly v. White, 874 F.3d 1197, 1218 (10th Cir. 2017) (cleaned up). Courts “may not simply accept what may be a self-serving account by the police officer.” Id. (quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994)). They “must also look at the circumstantial evidence that, if believed, would tend to discredit the police officer’s story, and consider whether this evidence could convince a rational factfinder that the officer acted unreasonably.” Id. (quoting Henrich, 39 F.3d at 915).
But “mere speculation, conjecture, or surmise” cannot defeat a summary-judgment motion, because “[u]nsubstantiated allegations carry no probative weight in summary judgment proceedings.” Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). “Standing alone, attacks on the credibility of evidence offered by a summary judgment movant do not warrant denial of a summary judgment motion.” Nat’l Am. Ins. Co. v. Am. Re-Ins. Co., 358 F.3d 736, 742 (10th Cir. 2004). If the nonmoving party provides insufficient evidence to support its factual assertions, we may accept as true the moving party’s version of the facts, as supported by the evidence. See Helvie v. Jenkins, 66 F.4th 1227, 1235–36 (10th Cir. 2023) (accepting as true the version of the facts offered by the moving party’s witness when the nonmoving party provides insufficient evidence to challenge the credibility of that witness). And “where a nonmoving party (who has the burden of persuasion at trial) fails to provide admissible evidence rebutting testimony offered by the moving party,” the court may grant summary judgment due to “the absence of evidence creating a triable issue of fact.” Helget v. City of Hays, 844 F.3d 1216, 1223 n.3 (10th Cir. 2017).
Qualified immunity “creates a presumption that the defendant is immune from suit.” Est. of Smart by Smart v. City of Wichita, 951 F.3d 1161, 1168 (10th Cir. 2020) (cleaned up). When a defendant asserts qualified immunity at the summary-judgment stage, the burden shifts to the plaintiff to demonstrate “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). “The plaintiff must satisfy both prongs to overcome a qualified immunity
II. Analysis
On appeal, the Estate attacks the district court’s conclusions on both qualified-immunity prongs. The Estate argues that the district court erred by concluding (1) that Deputy Ortega did not use excessive force in violation of Eguino-Alcala’s Fourth Amendment rights, and (2) that any such violation was not set by clearly established law. We have discretion to determine “which prong to address first” and may cabin our analysis to a single prong if that sufficiently resolves the case. Id. at 758 (internal quotation marks omitted).
To start, the Estate argues that the district court erred at prong one of the qualified-immunity analysis. It contends that the district court overlooked genuine disputes of material fact and failed to view the evidence in the light most favorable to it as the nonmoving party. The Estate claims that a reasonable jury could conclude that Deputy Ortega violated Eguino-Alcala’s Fourth Amendment rights. We disagree.
The Estate asserts a
“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396. We must analyze reasonableness based on “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397. This “calculus of reasonableness” must account for the “split-second judgments” that police officers must make “in circumstances that are tense, uncertain, and rapidly evolving[.]” Id. at 396–97. “[O]fficers need not wait until they see the gun’s barrel or the knife’s blade before using deadly force to protect themselves or those around them.” Est. of Taylor, 16 F.4th at 747. And even an officer’s mistaken belief can justify the use of deadly force—so long as that belief was reasonable. Est. of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008).
In considering whether an officer’s use of deadly force was reasonable, we review three factors (known as the Graham factors):
- the severity of the crime at issue;
- whether the suspect poses an immediate threat to the safety of the officers or others; and
- whether he is actively resisting arrest or attempting to evade arrest by flight.
Graham, 490 U.S. at 396. “Deadly force is justified under the Fourth Amendment if a reasonable officer in [the defendant’s] position would have had probable cause to believe that there was a threat of serious physical harm to [the officer] or to others.” Est. of Larsen, 511 F.3d at 1260 (internal quotation marks omitted). At bottom, the ultimate question is “whether, from the perspective of a reasonable
A. Graham Factor Two: Immediate Threat
We begin with the second Graham factor because it is “undoubtedly the ‘most important’ and fact intensive factor[.]” Pauly, 874 F.3d at 1216 (quoting Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010)). This is especially so here. For this factor, the Estate argues that Eguino-Alcala posed no immediate safety threat to the officers or the public. We disagree. An officer may reasonably use deadly force if he “has cause to believe there is a serious threat to himself or others.” Arnold v. City of Olathe, 35 F.4th 778, 789 (10th Cir. 2022). We analyze the seriousness of a threat under the following non-exclusive factors (known as the Larsen factors):
- whether the officers ordered the suspect to drop his weapon, and the suspect’s compliance with police commands;
- whether any hostile motions were made with the weapon towards the officers;
- the distance separating the officers and the suspect; and
- the manifest intentions of the suspect.
Est. of Larsen, 511 F.3d at 1260. Applying these factors, we conclude that Deputy Ortega reasonably believed that Eguino-Alcala posed an immediate and deadly threat.
For the first Larsen factor, the record establishes that Eguino-Alcala failed to comply with Deputy Ortega’s urgent orders. During their encounter, Eguino-Alcala positioned himself so that he blocked his right arm and hand from the deputy’s view. Deputy Ortega had ample basis to be concerned that Eguino-Alcala was armed. When Deputy Ortega ordered Eguino-Alcala to “get on the ground” and “put your hands up,” Eguino-Alcala failed to comply with either command.8 BN 5397 at 0:00:12–0:00:20. Instead, he maintained his worrisome posture, hiding his right arm and hand near his waistband. Id. at 0:00:13–0:00:18; App. vol. I, at 104, 237; Ortega Dep. at 0:28:37–0:29:12. After about a six-second standoff, Eguino-Alcala quickly twisted his body to face the officer while extending his right arm and pointing his finger as if a gun. BN 5396 at 0:00:05–0:00:24; BN 5397 at 0:00:20–0:00:21; BN 5399 at 0:00:10–0:00:14; Ortega Dep. at 0:29:12–0:29:40. In those circumstances, especially when alerted earlier that Eguino-Alcala may have a firearm, any reasonable officer would fear a drawn firearm.
The Estate argues that a jury could conclude that Eguino-Alcala lacked sufficient time to obey Deputy Ortega’s repeated commands. But Eguino-Alcala disobeyed for a full six seconds before making his sudden threatening movement. The dashcam video defeats the Estate’s assertion that Eguino-Alcala “moved to comply with commands to raise his hands.” Op. Br. at 48; see BN 5399 at 0:00:10–0:00:14.
The second Larsen factor pertains to hostile motions from the suspect. As discussed above, Eguino-Alcala’s hostile motion caused Deputy Ortega to reasonably fear an immediate and deadly threat. See id. at 767–68 (concluding that an officer reasonably shot an unarmed suspect in part because the suspect rapidly, and without warning, “withdrew his right hand from his waistband . . . consistent with the drawing of a gun”). A reasonable officer could have believed that Eguino-Alcala’s actions placed the officer under “mortal threat of gun violence, even if that judgment ultimately was mistaken.” Id. at 768. In fact, as the video shows, Deputy Ortega’s split-second decision may well have saved his own life had Eguino-Alcala really possessed a firearm—Eguino-Alcala’s quick move put him in position to shoot Deputy Ortega. See Est. of Valverde by and through Padilla v. Dodge, 967 F.3d 1049, 1060, 1064 (10th Cir. 2020) (noting our circuit’s “particular[] deferen[ce] to the split-second decisions police must make” and that “[n]o citizen can fairly expect to draw a gun on police without risking tragic consequences” (internal quotation marks omitted)). Without Deputy Ortega’s quick reaction, had Eguino-Alcala indeed been armed, he may well have beaten Deputy Ortega to the first shot. We cannot “expect any human being to remain passive in the face of an active threat on his or her life.” Id. at 1064 (internal quotation marks omitted).
As its sole evidence that Deputy Ortega unreasonably used deadly force, the Estate relies on Deputy Ortega’s dashcam footage to argue that a reasonable jury could find that Deputy Ortega fired his weapon before Eguino-Alcala’s sudden movement. But as earlier set forth, the dashcam video shows the opposite.10 By Frame 17218 of Deputy Ortega’s dashcam footage, Eguino-Alcala had started to twist his body upward and extend his arm and index finger.
officer may be forced to make split-second judgments under stressful and dangerous conditions.” (internal quotation marks omitted)). Because the Estate cites no other evidence to support its assertion that Eguino-Alcala twisted his body in response to the shooting, we discern no genuine dispute of material fact on this issue.13 See Helvie, 66 F.4th at 1235–36. The video evidence makes clear that Eguino-Alcala turned before Deputy Ortega’s first shot.14
The Estate also argues that “a jury could conclude that [Deputy] Ortega could see [Eguino-Alcala]’s hands and, therefore, could not have reasonably believed [Eguino-Alcala] was reaching for anything inside his pants.” Op. Br. at 18. But the Estate provides no support for this factual assertion. Its citation to Deputy Ortega’s deposition creates a misleading impression that Deputy Ortega saw Eguino-Alcala’s empty hands before he fired. Id. at 18, 24 (citing Ortega Dep. at 0:29:25–0:30:24). Rather, Deputy Ortega testified that he did not see a gun but saw that Eguino-Alcala “was going to pull something out.” Ortega Dep. at 0:29:55–0:30:25. He further testified that the shooting happened “so fast” that he
The Estate then asserts that Deputy Ortega “had no reason to suspect [Eguino-Alcala] was concealing a firearm.” Op. Br. at 18. It cites Deputy Ortega’s OIS Interview, during which he testified that he did not hear any dispatch reports about a rifle. Id. at 17 (citing OIS Interview at 21:09–21:2116). We agree with the Estate that what matters is what Deputy Ortega knew by the time he shot his firearm, not what dispatch had reported before that. Cox v. Wilson, 971 F.3d 1159, 1166 (10th Cir. 2020) (“[T]he only evidence relevant to the propriety of [an officer]’s actions is what [that officer] observed or what he was informed of by others.”); see also Graham, 490 U.S. at 396 (requiring that we judge reasonableness “from the perspective of a reasonable officer on the scene”). So without more, the dispatch reports insufficiently show that Deputy Ortega knew about the rifle.
But Deputy Ortega had information beyond any dispatch reports. As Deputy Ortega stated in his OIS Interview, bystanders at the automobile-accident site told him that Eguino-Alcala had a firearm. OIS Interview at 0:02:41–0:03:37; 0:10:47–0:11:38. He testified that several bystanders had yelled words to the effect of, “He has a gun, he’s running that way.” Id. at 0:11:27–0:11:36. He also stated that an older man approached him at the accident site to tell him that Eguino-Alcala had pulled a gun, pointed it at people, and then ran down South Main Street before taking the first right.17 Id. at 0:02:41–0:03:37, 0:11:10–0:11:24.
The dashcam video also establishes that he knew about Eguino-Alcala’s involvement with a firearm. After visiting the automobile-accident site, Deputy Ortega radioed other officers about “a possible 10-80 [a firearm]” as he searched for Eguino-Alcala. BN 2787 at 0:06:10–0:06:20. The record establishes that Deputy Ortega knew about a potential firearm by the time he confronted Eguino-Alcala. So the Estate’s attempt to create a disputed fact falls short. Deputy Ortega could reasonably have believed that Eguino-Alcala was armed during their encounter. The second Larsen factor weighs in favor of an immediate threat.
For the third Larsen factor, the Estate argues that a thirty-five-foot distance between Deputy Ortega and Eguino-Alcala does not support using deadly force. Again, we disagree. We have held that this factor favors an immediate threat at twenty feet if the officer lacks cover and reasonably believes the suspect wields a knife or a gun. Palacios v. Fortuna, 61 F.4th 1248, 1260 (10th Cir. 2023) (concluding that this factor supports an immediate threat at fifteen to twenty feet, if the officer lacks cover, for a gun-wielding suspect); Est. of Larsen, 511 F.3d at 1260–62 (same at seven to twenty feet for a knife-wielding suspect). By contrast, we have determined that fifty feet, if an officer has cover from a gun-wielding suspect, does not support an immediate threat. Pauly, 874 F.3d at 1218. With these guideposts in mind, we conclude that the distance of thirty-five feet between Deputy Ortega and a potentially armed Eguino-Alcala supports an immediate safety threat.18
The Estate’s citations to Walker v. City of Orem, 451 F.3d 1139 (10th Cir. 2006) and Zuchel v. Spinharney, 890 F.2d 273 (10th Cir. 1989) provide it no help. Both cases involved suspects who wielded knives rather than firearms. Walker, 451 F.3d at 1159–60 (shooting a knife-wielding suspect may be excessive when the suspect was at least twenty-one feet away from the officer); Zuchel, 890 F.2d at 275 (same when the suspect was ten to twelve feet away and neither charged nor stabbed at the officer). All else equal, we decline to treat the level of danger from a knife-wielding suspect as equivalent to that of a gun-wielding suspect. See Est. of Ceballos v. Husk, 919 F.3d 1204, 1216 (10th Cir. 2019) (stating that a suspect armed with a firearm—“capable of harming someone from a much greater distance and with greater lethal potential”—provides a “stronger justification for [a] police shooting” than a suspect armed with a pocketknife). For these reasons, the third Larsen factor favors an immediate threat.
And last, the fourth Larsen factor—the manifest intentions of the defendant—supports a finding of an immediate threat. Before their encounter, Deputy Ortega reasonably believed that Eguino-Alcala
Because all four Larsen factors point to an immediate threat, the second—and most important—Graham factor supports Deputy Ortega’s use of deadly force.
B. Graham Factors One and Three: Severity of the Crime & Resisting or Evading Arrest
The Estate also challenges the district court’s rulings on the first and third Graham factors. These factors are close calls. But even if we were to assume that both factors weighed against Deputy Ortega, they cannot overcome the strength of the second Graham factor. See Est. of Taylor, 16 F.4th at 763–77 (concluding that an officer reasonably used deadly force even when the second Graham factor alone favored the officer). Deputy Ortega reasonably perceived an immediate and lethal threat to himself; that threat surpasses any argument in favor of the Estate under the first and third Graham factors. We conclude that his use of deadly force was reasonable under the totality of the circumstances.19
In finding no Fourth Amendment violation, we hold that qualified immunity bars the Estate’s claims under
CONCLUSION
We affirm the orders dismissing the