Cordova v. City of Albuquerque

(and cap punitive compensatory) primary dam- decision makers over matters Congress later clarification of which in ages, State Farm’s has vested their author I.N.S., ity.” guidepost the ratio means we now Mickeviciute v. 327 F.3d 1159, (10th Cir.2003); punitive-to-compensatory- consider see I.N.S. Ventura, 12, differently 14-17, 123 than dama¿es ratio we' did 537 U.S. S.Ct. that, recognize But Deters. we (holding L.Ed.2d 272 that the continue Farm, higher may even under State ratios court of appeals should have remanded the satisfy process particu- question well due where “a relevant to the agency rather itself). larly only act has than egregious question resulted decide the On re mand, damages.” small amount of economic Id. the Board should consider whether BMW, (quoting the punitive-damages 517 U.S. S.Ct. award satisfies due 1589). Indeed, rigid process § are no by using “there bench- both 20109 and the punitive damages may that a guideposts. marks award surpass.” Haberman v. The Hartford CONCLUSION Grp.,

Ins. Cir. 2006). deny petition We BNSF’s for review part petition insofar as the addresses the comparable-cases guidepost,

For the finding supporting FRSA violation and the that Congress note has authorized the a punitive-damages grant We award. punitive maximum-available amount petition in part regarding the amount and damages $250,000. in FRSA On cases: constitutionality punitive-dam- remand, the can Board consider this statu- ages award for and remand the Board torily authorized amount well as its own remand, further' consideration. On comparable awarding punitive cases dam- provide explana- Board should a reasoned ages determining puni- what amount tion punitive for the it damages awards damages justified. tive and then evaluate that award under the Department of Labor asks us to State Farm guideposts. conclude that State Farm guide- under the posts, punitive-damages the Board’s award due process.

satisfies BNSF contends not'satisfy

that the pro- award does due

cess and cannot survive review under the guideposts, particularly given the double- CORDOVA, Stephan Plaintiff digit punitive-to-compensatory-damages -Appellan

ratio. , t pu decline evaluate We ALBUQUERQUE; Ray CITY OF nitive-damages award under the State Schultz, Chief; Argueta; Carlos Aa guideposts Farm first instance. Heyman; Hoisington; Matthew reviewing “[W]hen concludes Kees; Fox; Kevin James and Kenneth agency invested with broad discretion Neiberger, Defendants-Appellees. apparently to fashion remedies has abused ..., agency discretion remand the' No. 14-2083. reconsideration, enlargement Appeals, States Court United order, agency ordinarily the re Tenth Circuit. viewing court’s proper course.” N.L.R.B. 8, 2016. Union, March Emps. v. Food Store Local 10, 94 U.S. S.Ct. 40 L.Ed.2d

(1974). Indeed, “agencies should

' (Shannon Kennedy L. Joseph P. Kenne-. briefs), Kennedy Ken- dy with him on Ives, LLC, NM, for nedy Albuquerque, & Appellant. Roman, Robles, Anaya, Rael & A.

David NM, P.C., Albuquerque, Appellees. TYMKOVICH, house, Judge, Chief brother’s where he Af- living. Before was GORSUCH, EBEL, Judges. him, Circuit and ter his his mother left sister-in-law on him found him ill. seriously checked TYMKOVICH, Judge. Chief ambulance, She an believing called Department Police Albuquerque Three Cordova was having heart attack. Cor- after Stephan officers shot he Cordova^ dova refused her offer drive him to the gun direction. raised their Cordova hospital get and told her he would not assault, charged with survived was in the ambulance. When she told him that later, although charges were dismissed go, he had he that he replied did not speedy grounds. trial then go anywhere have because he had a brought this action under U.S.C. gun. (1) primarily § claiming arrived, paramedics When the sister-in-

charges brought of assault were bad law told faith; (2) refusing them that he was unreasonably treat- pre- that the police - gun. ment and that -a his he had family interaction Albu- vented when called, recovering querque in a from his hospital Police were and officers wounds; Fox, used police Neiberger, excessive Hoisington, and Kees re- by firing adequate on him without force sponded. quickly The officers learned warning. only The district allowed family threats and instructed members the Fourth excessive-force Amendment Fox leave the house. Officer was also trial, go a-jury claims to to where returned told about physical- Cordova’s condition for a verdict the officers. and that in the he middle a difficult was thought, divorce. Fox at Officer We find no in the district court’s error point, Cordova might be suicidal. (1) explain conclusions. As below: we case, under the the dismissal facts eventually Cordova exited the house. charges Speedy of the assault under the The him approached officers and asked Act is Trial not indicative Cordova’s in- to' stop him and his show hands before qualify as fa- nocence and thus does a began moving walking further. Cordova purposes for of a ma- vorable termination backward down the. street and Officer action; licious cause gun had a Kees noticed that Cordova in his claim fails Cordova’s familial-association According officers, to waistband. the he prohibition on visitors because the was waist, kept touching gun despite the his a protected to with intended interfere repeated warnings their to keep his hand reasonably relationship and was related away. legitimate government purpose; to a and claim, (3) as to force the excessive Cordo- gun slowly, Cordova then drew and was to adequately drop va a warned waist, held it at his down. pointing Ser weapon wielding at he was the time of geant drop Fox then Cordova to ordered shooting, district cor- and the court gun. The officers then claim to three rectly to jury appli- as instructed the simultaneously have observed Cordova r cable law. direction, all raising gun thei fired, hitting eight three Cordova times. Exercising jurisdiction under 28 U.S.C. shooting, § After the Cordova was taken AFFIRM. hospital surgery. During for emergency Background

I. recovery, officers restricted access to his Stephan hospital speak ill at his was able to Cordova became work room until he investigators. for a to his site. He called his mother lift with associate with right his terferenee with injuries, .Cordova was of his Because family. his days. five to communicate unable speak finally enough to well

When he Analysis II. right to counsel. police, he invoked court erred alleges district restriction but Cordova police lifted the access The summary on his judgment in granting from to be released not intend for him did familial asso § prosecution, 1983 malicious him police charged also hospital. The ciation, For his process claims. and due warrant was arrest and an with assault claims, he contends force excessive by a court. issued state judg have entered court should district hospital, Cordova filed still ih the While least, or, at in his allowed favor ment quash complaint, to dismiss the a motion variety of trial and trial because of new warrant, appear his first and waive instructional errors.1 bond, in an set A court later ance. claims each Cordova’s We discuss release, setting .conditions order turn. custody “D to remain judge handwrote notice.” hospital] until further [the A. Malicious Prosecution order, the next App. Despite at 691. summary granted district discharged day hospital Cordova malicious-prosecu judgment on Cordova’s county him to a dev transferred detectives establish, claim tion because failed r tention cente law, against charges a matter indicted, but moved was later in his favor. He him were terminated grounds on the to dismiss the indictment conclusion, challenges the court’s district given opportunity not been that he had charges the dismissal contending exculpatory evidence present him against Speedy under New Mexico’s granted this grand jury. The state court termi Trial Act favorable constituted then re- motion to Cordova was dismiss. nation .

indicted, two-year .delay again after a and' § prevail To on a malicious- 1983 on the to dismiss the indictment moved claim, prosecution must show: given trial court had grounds that the (1) plaintiffs the the defendant caused con Undeterred, jury instruction. erroneous (2) original prosecution; or the finement He again indicted Cordova. the state favor; plaintiffs action terminated the moved to dismiss indictment (3) to confine probable was no cause there grounds, given nearly five speedy trial (4) malice; plaintiff; and prosecute filing from the of the years passed had DeReyes, damages. v. 528 Wilkins Over,the state’s complaint. initial criminal Cir.2008). (10th It granted motion. objection, the court the. to show that the termi plaintiffs burden Id. at 803. Al nation was favorable. brought this -action under

Cordova then charges of the assault variety though § the dismissal alleging fed- U.S.C. benefit, violations, certainly we including ex- worked Cordova’s eral constitutional it force, that was prosecution agree in- with the district court cessive Werholtz, brief, opening Reedy challenged in his See v. reply it brief. In his Cordova also 1. Cir.2011) (“[A] municipal-liability claims the dismissal of his 660 F.3d However, against City Albuquerque. arguments raised for party waives issues argument attorney oral brief.”). admitted at reply the first time in a by failing issue to include had waived this prevailing under the repeated delays. favorable termination process This whole w years. took approximately la five matter, As an initial has not Cordova analyzed most recently the contours We presented any argument'that length of the termination requirement favorable the process was attributable to intentional There, prosecutor Wilkins. had delay or prosecution’s misgivings about underlying charges by filing dismissed the of a conviction. likelihood After the prosequi—a voluntary a so-called nolle dis indictment, third explained the state of charges. missal Id. 802. We found part delay prosecutor due to its prosecutor the mere fact that a had chosen being new to the case and needing catch to abandon' a case was insufficient to show addition, In up. the state court found Instead, favorable termination. the termi had speedy failed invoke his nation way must some “indicate the trial rights in timely a clear and manner innocence of (quot accused.” Id. at 803 during pendency of the third indict- (Second) § ing Restatement Torts And, fact, prior ment. to. the third (1977)). cmt. a it is unclear When whether dismissal, expressed state its desire the. innocence, the termination indicates we proceed readiness to to trial. Apply- “look reasons stated for the dismiss Wilkins, ing the district court found the al well as to as sur circumstances underlying charges were dismissed on rounding it” and determine “whether the technical, procedural grounds which had to proceed implies failure a lack of reason nothing to do with the merits case. grounds able prosecution. Id.” facts, Given undisputed agree these (quoting Murphy Lynn, district, with the court that the circum- (2d a, Or, Cir.1997)), leading trea surrounding stances this dismissal are not it, put prosecution tise the abandonment of indicative of Cordova’s innocence. that “does not ... touch the merits leaves , Cordova asks us set our aside indica the accused without a favorable termi tive-of-innocence standard and find that Dobb’s, al., nation.” Dan B. Dobbs et Law per dismissals are se favor .trial speedy (2d § ed.2015). of Torts position, able. of his support he cites to Second cases and York Circuit New state case, In this chargés Cordova’s assault holding case that a dismissal under grounds were dismissed on speedy trial Speedy qualifies New York’s Trial Act as a after a procedural series of blunders favorable termination. Rogers City See resulted in three Amsterdam, (2d Cir.2002); original failed indictments. The indict- of Harvey, Smith-Hunter v. 95 N.Y.2d ment was dismissed because the state 712 N.Y.S.2d 734 N.E.2d give opportunity failed to Cordova the (2000); v . see also Posr Court testify before grand jury. The state Officer (2d.Cir.1999); Shield No. 180 F.3d 409 then obtained a second but indictment (2d Lynn, Murphy v. 118 F.3d 938 Cir. years a two obtained' dismissal 1997) later grand jury because the was never (cid:127) necessary instructed a of element speedy These cases find trial dismissals charges. grand jury After the returned a qualify as terminations for favorable three indictment, third trial court First,- dismissed they reasons. have reasoned that a prejudice' the action: with on speedy trial state’s proceed timely failure a man grounds objection, over the usually state’s ner a reason- indicates- lack reasonable ing See, that prejudiced by grounds e.g., Cordova had been for Mur prosecution. of law....” matter Id. We may question at 951. While this be as a

phy, 118 F.3d Murphy with both true, adopt per agreement no a se are thus in we see reason holding courts in majority courts from con and the other rule prohibiting district not se speedy per that trial dismissals do sidering the circumstances each dismiss here, constitute favorable terminations. al. As is the case there will doubt dismissal less be instances where , argument the New The final made proce to technical or is issue attributable that basic York line of is fairness cases not that reflect the merits errors do dural speedy trial requires recognize us dis charges. underlying They argue that it missals as favorable. Second, to force a unjust would be criminal defen these cases theorize enforcing prosecutors to dant choose incentivize between other rule would speedy rights maintaining charges than dis trial rather abandon weak prosecution outright, allowing ability a malicious missing them them to bring fail to recognize dismissals thus action. But these cases speedy obtain trial such are a prosecution Rog feature malicious claims. trade-offs standard avoid ers, Again, prosecution 160. law. Courts rou F.3d at malicious individual resulting tinely that dismissals from of the circumstances sur find consideration (or statutory of his adequately dismissal ad defendant’s exercise rounding each Smith-Hunter, constitutional) rights concern. See even are not favor dresses purposes able for of a later 734 N.E.2d at 756. N.Y.S.2d opinion prevents example, claim. For as Nothing in our district noted Wilkins, may finding unexplained delay fa courts from termination charges grounds for vorable indicates a lack reasonable even when aban case, for prosecution. example, doned. This' is the key when evidence ruled inadmissable. Circuit’s Murphy Even the Second deci only suppressed on When “evidence [is] sion our supports determination, that not having no or grounds ‘technical’ little rela all speedy qualify trial dismissals as favor trustworthiness, tion to the then evidence’s Murphy, prose able In terminations. the fact not other that there sufficient [is] present any explanation cution failed to evidence ... indicative of inno [is] delay bringing its to trial. the defendant Wilkins, (quoting cence.” 528 F.3d at 804 result, As F.3d at 951. the district Palacios, Dobiecki v. 829 F.Supp. prosecution’s court held that unex (N.D.Ill.1993)). plained delay prima proof facie short, Id. not termination. The court these cases are based on a favorable ed, however, understanding that the of the state could rebut this different favorable if someone from presumption prosecu requirement termination than en testify delay adopted tor’s were to dorsed office Wilkins. Wilkins was attributable to traditional common law element that a dis circumstances unrelat ed missal innocence to the merits the case. Id. The “indicate the must qualify approach, Circuit endorsed this accused” to favorable termi Second . Wilkins, concluding, (quoting not nation at 803 “Defendants chose to call 528 F.3d (Second) § attorney trial of Torts cmt. as a Restatement 660 assistant district (1977)). Smith-Hunter, any to offer non-merits-based ex But in the New witness rejected planation proceed against Appeals for the failure York Court of the tradi rule, Accordingly, holding any that dismissal Murphy. district tional ” properly quali- decided the is “not inconsistent with innocence favorable-termination

653 438, fact, fies as “favorable.” 712 734 the N.Y.S.2d termination of a case.3 most added). (emphasis N.E.2d at 755 Not courts follow the approach Wilkins and only is conception Smith-Hunter’s look to the surrounding circumstances . requirement termination at speedy favorable odds trial dismissals determine Wilkins, with the rule we it adopted whether they indicate of innocence flips the traditional rule its head accused.4 That statutory had a terminations presuming right are favorable until to dismissal Speedy under the Trial result, proven otherwise. As a both Act thus does not set his burden of aside Smith-Hunter Second Circuit’s meeting the indicative-of-innocence re- decision, Rogers at (applying quirement. 303 F.3d 160 holding speedy

Smith-Hunter that- a Thus, generally cannot main trial dismissal is favorable termination tain a prosecution malicious action unless law), York of per- under New limited his charges were dismissed in manner value. suasive innocence, indicative when he was even Applying our indicative-of-innocence entitled dismissal on statutory- or consti rule, many courts have found an aban- grounds. tutional Although may this rule is not produce donment favorable even when the a dilemma for defendants at least suppressed crucial evidence was consti- applications, some -it is both-a standard grounds.2 In all of these instanc- prosecution feature the tort of tutional malicious es, it was defendant’s of his exercise and a reflection idea malicious right constitutional to exclude certain prosecution evi- actions are disfavored com dence that dismissal. Courts led mon Copper See Hernon & law.( v. Revere Brass, Inc., often find 705, that no favorable termination 494 F.2d 707 Cir. 1974) despite (“[T]he has occurred of statu- general exercise rule is that suits are, tory rights resulting constitutional viewed with dis- See, Cuccia, 431, e.g., limitations); Carr, 1241, 2. Miller v. 201 F.3d Brown v. 503 A.2d 1070084, (2d (un Cir.1999) (D.C.1986) (failure claim). WL 1999 at *1 1246 to state a (lack'of arrest); published) probable cause for City Bakersfield, Aleman v. 4.See, WL Homes, 2013 Inc., e.g., Energy Schlueter v. S. 3936740, (E.D.Cal.2013) (warrantless at *12 7, (6th. Cir.2007) Fed.Appx. 252 (speedy 10-11 search); 869046, Morgan Ramsey, v. 2013 WL termination); trial dismissal not a favorable (N.D.Okla.2013) (invalid warrant); at *7 Gavin, Wil 371, (3d Donahue v. 384 Mullins, 1227, F.Supp.2d lis v. 809 Cir.2002) 1241 (holding prosequi that a does nolle (E.D.Cal.2011) (warrantless search); El Ran prosecu indicate “[t]he innocence'where chito, City Harvey, F.Supp.2d Inc. v. 207 simply plaintiff] tor reasoned [the. 814, (N.D.Ill.2002) (warrantless 822-23 , likely jail to receive time additional if search); Dobiecki, (Mi F.Supp. 829 at 235-36 retrial”); Garrett, Brayshaw convicted in a v. violation); City randa v. 4:10CV272, 971147, Schenec Martinez No. 2011 WL at *8-9 78, tady, 868, 97 N.Y.2d 735 N.Y.S.2d 761 (N.D.Fla. 16, 2011) (speedy Jan. trial dismiss 560, (2001) (invalid warrant). 564 al); N.E.2d Baldwin, 712, Ill.App.3d Rich v. 133 cf. 88 Ill.Dec. 364 N.E.2d See, Mabus, e.g., 3. F.Supp. Rhodes v. (finding speedy trial constituted violation fa (S.D.Miss.1987) termination, (prosecutor improp- tying holding vorable but - - erly grand jurors); ‘‘prosecutor’s communicated with unexplained Bear unexcused Telecomms., Inc., trial”); Parrish, den v. proceed BellSouth 29 So.3d failure to (lack (Miss.2010) (action jurisdiction); S.W.3d dismissed as outside Marquis, Parrish favorably S.W.3d statute of limitations was not termi (Tenn.2005) nated); (charges Corp., outside statute limita Palmer Dev. 723 A.2d at 884 tions); Gordon, (action Corp. Palmer Dev. 723 A.2d dismissed as- outside statute of limita (Me.1999) terminated). (charges outside favorably statute of tions was not facts undisputed cence. The reveal the guarded be carefully favor are to ' its not abandon effort to prosecution did against.”). Cordova, suggests try nothing dismissal, moreover, is A speedy trial speedy indicated his inno- trial dismissal Wilkins, prosequi unlike the nolle of crime. charged cence Absent such merely dropped the prosecution which the a court showing, properly the district by prosecution charges. action is This granted summary judgment mali- ambiguous, in that we cannot know'the prosecution cious claim. Here, dropping charges. reasons ‘for contrast, unambiguously the state B. Familial Association granted charges to dismiss a motion challenges Cordova next district But this is against distinction Cordova. court’s of his familial dismissal association we must ask question irrelevant. The not claim. court found had of The whether the dismissal indicative pointed facts that would allow a It cannot be case that all innocence. jury to conclude the officers granted from mo- reasonable dismissals result that terminations, pur- protected tions intended a are favorable with rela- interfere poses tionship. actions. malicious - The here not Cor- does dismissal indicate right to familial associa “Th[e] innocence, it is dova’s so not favorable is grounded tion in the Fourteenth Amend termination. Lowery ment’s Due Process Clause.” v. requirement The termination favorable (10th Cty Riley, 522 F.3d filtering thus a useful serves as mecha- Cir.2008), on a prevail To familial-associa nism, already that have barring actions claim, plaintiff tion must make two show likelihood of demonstrated some success. (1) ings: that defendants “intended requirement

Although may traditional deprive protected relation [him] [his] actions, bar some prose- meritorious where ship,” balancing the that individu delay does indicate the innocence cutorial protected al’s rela familial interest plaintiff the accused the will tionship against the state’s interests in its bringing from prose- barred actions,- “unduly either bur defendants cution our claim under rule. Our conclu- ‘plaintiff’s] protected relationship, dened receptive sion is thus more Cordova’s or into an unwarranted intrusion effected many fairness concerns than applications Kaven, relationship.” Thomas traditionally this area the law are—a Cir.2014) (citations jurisdiction to a lack of or dismissal due omitted). marks quotation and internal will rarely admissible evidence reflect But “not or act every statement that re the merits of the case and is therefore right sults with the .interference to, likely more bar meritorious claim. familial association is actionable. con Nor, emphasize, we does a dismiss- should duct must be directed at the statement presumption al of charges create a of inno- relationship knowledge familial of proving’the cence the burden or shift adversely will statements or conduct element of termination to the favorable relationship.” (quoting Id. J.B. affect defendant. Washington Cty., (10th Cir.1997)) added). sum, agree (emphasis with the Put district court differently, the first satisfy prong of the underlying dismissal assáult test, charges allege Speedy New Mexico’s Trial must defendants under partic- Act inno- had the to interfere” with -a was hot indicative Cordova’s “intent Id.; relationship. stabilized, protected gery, ular see also and eventually transferred Comm’rs, Trujillo Cty. v. Bd. 768 F.2d to a room. At point, that officers barred of Cir.1985).5 1186, 1190 In conducting from hospital visitors his room until he was balancing required by the second speak police. later, able to with days Five consider, prong, among “the court will oth investigators were informed Cordova things, severity of the infringement er was able to they communicate and at- protected relationship, for need tempted to obtain a statement. But at conduct, possible defendants’ alterna that time he speak asked attor- Thomas, tive courses of action.” 765 F.3d ney. immediately The officers terminated at 1196 the interview and the visitation restriction was magistrate lifted. The judge ultimate- granted The district sum ly granted summary judgment on Cordo- judgment officers, mary favor claim, va’s familial-association finding that finding the'familial-association claim was -not could demonstrate the officers in- by qualified immunity. “[Qualified barred tended to protected with a immunity interfere rela- protects government officials tionship. from liability damages for civil insofar their clearly conduct not violate does es presented has not any evidence statutory tablished or rights constitutional demonstrating that the officers intended to person of which a reasonable would have right interfere with his to familial associa- Callahan, known.” Pearson v. U.S. Thomas, tion. See The 1196. 223, 231, 129 S.Ct. 172 L.Ed.2d 565 visitation was not restriction aimed at (internal (2009) omitted). quotation particular protected relationship or set of qualified “When defendant asserts immu a temporary was relationships—this blan- summary judgment at the nity stage, the prohibition ket on all visitors. Cordova burden shifts to plaintiff, who must argues that intent can interfere in- clear two hurdles defeat the defendant’s from any legitimate ferred the lack of gov- Romero,

motion.” Lundstrom v. barring ernment interest visitors from (10th Cir.2010). hospital his room. “(1) must then demonstrate that the defen (2) dant. violated a constitutional right, and The officers claim- legitimate gov- two- was right, clearly established at the objectives First, in response. ernment alleged time of the activity.” unlawful Id. they argue the visitation Restriction helped ensure Cordova’s eventual agree statement

We with the district court thoughts that Cordova cannot “uncontaminated meet prong either views of deprivation test,- Aple. Second, others.” Br. at 22. familial-association they thus cannot show a'violation contend the restriction advanced the rights. constitutional shooting, safety After the personnel officers and hospital emergency Cordova was taken immediately sur- following shooting. Cor- claim, 5. The analyze rejected officers contend we should holding Cor- 1861. The Court their does, similarly dova’s pretrial claim familial-association restriction detainee addressing detention, pretrial our rely cases punishment (Con not constitute unless it is ing Wolfish, on Bell v. punishment 441 U.S. 99 S.Ct. tended as unrelated ato (1979). Bell, legitimate government objective. L.Ed.2d 447 Id. at group pretrial argued detainees visita S.Ct. 1861. Because Bell dealt with a tion restrictions violated their right Fifth Amend different constitutional claim—the to be right punishment ment to be free of punishment—we free apply absent an from instead our adjudication guilt. analysis. Id. at 99 S.Ct. familial-association normal possess range the full justifications pretex- ply does argues these dova individual”). of an tual. freedoms unincarcerated Furthermore, undisputed facts in the the disagree genuine that raises a We he no- summary judgment support the record to the officers’ of material fact as issue point the visitor restriction tion that the above, argu As the intent. mentioned It a statement. is to ensure was clean jury intent to a could infer ment attempted uncontroverted -detectives relationships his from the with interfere from obtain a statement Cordova to visi barring for legitimate lack of reasons as he to communicate. soon was able government, from his room.- tors declined, the visitation restriction When however, in legitimate did-have-a interest immediately lifted, showing was the attempting it to was obtain the restriction: not at” in- had restriction been “directed or an untainted uninfluenced statement 6 terfering, with Cordova’s familial-associa- point, shooting. the At this concerning rights, legitimate but at in- tion rather aggra being was detained the Cordova purpose. vestigative officers. Ob-: police assault three vated could taming unbiased statement sub no in the dis- find error We therefore stantially investigation of the assist the trict court’s dismissal of the familial-associ- justifica this Regardless case. whether ation claim. could not Because Cordova balancing to satisfy tion is sufficient the violation, demonstrate constitutional required prong test under the second immunity qualified officers were entitled inquiry, this shows the de explanation on this claim. “at actions were not directed fendants’ Thomas, relationship.” familial Hearing Right Preliminary to a C. Rather, at 1195-96. their were actions next the officers failed argues Cordova obtaining the best statement directed timely return the arrest warrant to the possible from Cordova. required by state court as state law. He any or proffered facts Nor has Cordova delay contends this amounted to violation jury that would theories allow find right process. of his due The district justification He ar- pretextual. granted summary judgment favor very gues not been detectives could have officers, any delay concluding with, getting uncontaminated concerned infringe not due did procedural statements the officers involved in because rights. process shooting similar restric- did have claims, In assessing process due placed on fail to tions them. We see require questions: our us to ask two cases point. Again, of this relevance “(1) plaintiff shown whether has police custody aggravated was in for the ‘life, deprivation liberty, of an interest officers, police three a crime for assault, of property’ proce whether eventually charged. which he would by government followed dures de in no Detectives’ treatment of the officers comported priving the of that interest in ob- way the state’s interest relates ” process th of law.’ Elliott taining an uncontaminated from ‘due statement wi Martinez, Bell, 675 1244 99 v. Cordova. 441 U.S. Cf. Cir.2012), Liberty (finding “sim- interests can either pretrial 1861 detainee 5.Ct. Because, insuring safety agree government's we visitors its interest 6. interest, purported hospital need address personnel. first of officers relationship prohibition between

657 (10th Cir.2013). from Constitution or be arise created F.3d 847 But that case Helms, Hewitt v. state law. See no requirement. establishes such As the 460, 466, U.S. Supreme S.Ct. L.Ed.2d Court made clear in Gerstein v. (1983). But not all state laws Pugh, 103, 120, create U.S. S.Ct. liberty constitutionally protected interests. (1975), L.Ed.2d an arrestee has a con We determine which statutes create liber right stitutional to a prompt probable ty by looking language interests “the determination, cause not to particular the statutes themselves.” Montero v. adversary kind of hearing. Probable (10th Cir.1994). Meyer, 13 F.3d cause “can reliably be determined without simply, protect ‘a creates a “Stated State adversary an hearing” standard, and that liberty by placing ed interest substantive reason to suspect believe the has commit ” limitations on Ky. official discretion.’ crime, ted a “traditionally has been decid Dep’t Thompson, 490 U.S. by magistrate ed a in a nonadversary pro of Corr. 462, 109 1904, 104 S.Ct. L.Ed.2d 506 ceeding on hearsay and testimony, written Wakinekona, (quoting Olim v. 461 U.S. approved and the Court has these informal 238, 249, 103 S.Ct. 75 L.Ed.2d 813 proof.” modes Id. is not to Wilson (1983)). contrary. At point no recognize we a did right to hearing, a argues. as Cordova a points

Cordova to New Mexico law Rather, simply acknowledged the Su requires police to return arrest preme recognition'of Court’s the'right to a issuing immediately warrants to the court n judicial probable determinatio of cause. completed.7 after arrest is He claims at (citing See 715 F.3d Cty. comply one the officers failed to Riverside McLaughlin, 44, 56, result, U.S. requirement, this legal a (1991); S.Ct. process against delayed. him was L.Ed.2d More Gerstein, 854). 420 U.S. at 95 S.Ct. specifically, argues precedent-en- he circuit probable-cause titles him to a hearing Here, magistrate a neutral judge deter- forty-eight within hours of arrest and that probable mined there was cause to detain New Mexico him prelimi- law entitles to a day within of his arrest and Cordova a nary hearing days within twelve arrest. signed a for his warrant arrest. Cordova - hearings Because he received no until suggestion has no proce- made twenty days shooting, after -the -Cordova dure was in conflict Supreme with the argues that the officer’s to failure return prior approving probable Court’s cases him of deprived warrant constitutional- cause “by magis- determinations made a ly required timely legal process. trate in a nonadversary proceeding.” Gerstein, no We find merit these con U.S. S.Ct. 854. tentions. relies on our probable -recent Cordova received cause de- termination, precedent right that an has a arrestee a requires and the Constitution probable-cause hearing forty-eight -within nothing forty-eight else within hours of arrest; Montano, hours of Wilson v. 715 arrest. 7. Section process 31-1^4 the New Mexico.Statutes issue in criminal cases filed provides part: magistrate duty court. It shall be the of the process law duty enforcement officer whom is D. It shall be the of the clerk of the process directed process court return the district to issue criminal execute cases in the district court. It shall same to the clerk of the from filed court which or, duty magistrate process clerk of the is if issued there is no clerk of - clerk, court, magistrate, or the judge if there is no thereof. facility county jail’s medical unpersuaded by UNMH a also Cor

We hospital discharged him. He after New Mexico law contention that dova’s court’s order this on state bond interest, bases constitutionally liberty creates a contained a handwritten note stat- which otherwise, preliminary in a protected custody “D UNMH- ing, to remain days of hearing arrest. within twelve App. until further at 691. Cordo- notice.” 6-202(D) short, of the that Rule argues constitutionally va this created contends requires a Rules New Mexico Annotated remaining in his protected liberty interest within hearing days ten preliminary at UNMH. and, under Wilson hearing” “initial Gerstein, hearing initial must be within qualified officer is entitled to He days of arrest. thus two concludes immunity on this claim. To establish that, right to a state establishes law claim, process must demon due days. preliminary hearing within twelve of a clearly the violation established strate above, however, neither Wil As discussed right clearly A es right. constitutional son nor Gerstein require any kind of hear “when, time of the chal at the tablished days of initial ing two arrest—the within conduct, right lenged contours ‘[t]he [a] 6-202(D) in is an hearing Rule described every ‘reason sufficiently clear’ [are] fact, In New entirely different matter. understood that official would have able ” specific limit law no time .on Mexico sets what, doing right.’ violates that he is requiring only appearances, initial al-Kidd, v. U.S. 731, 131 S.Ct. 563 Ashcroft delay,” they unnecessary be held “without 2083, (2011) (quot L.Ed.2d 1149 179 31-1-5(B). § stan Ann. This N.M. Stat. Creighton, Anderson v. ing 483 U.S. dard allows for considerable discretion and (1987)). 640, 107 S.Ct. 97 L.Ed.2d of a constitution thus cannot be the basis “.Ordinarily, in order for the law Ky. See liberty ally protected interest. established, clearly a Su there must be Corr.,

Dep’t 109 S.Ct. U.S. at Circuit decision preme Court or Tenth 1904. weight of clearly or the established point, must authority consti- from other courts have

Cordova has not identified plaintiff as the main interests found the law be tutionally protected liberty Wilson, tains.” Clark v. his claim that support which could he 625 F.3d ex (10th Cir.2010) Zia Trust Co. deprived timely legal process. (quoting was As Causey Montoya, rel. above, consti- F.3d an arrestee is not discussed (10th Cir.2010)). tó a tutionally probqble-cause entitled hearing hours of arrest forty-eight within First, Supreme has never held Court magistrate already where a neutral has custody order thqt a state create court can probable cause determination. made constitutionally protected liberty interest in anything Nor New Mexico law does facility. a particular in confinement right preliminary hearing establish a to a exists, right if it not Even such a days within twelve of arrest. The district clearly at the time of Cordova’s established dismissing did not err claim. transfer. stated Cordova The bond order until further no- should remain at UNMH from, University of

D. Transfer New It who initiated tice. was not the officer Hospital Mexico dis- Cordova’s removal from UNMH—the hospital charge was issued final constitutional claim is order Cordova’s moreover, officer, legiti- had a of the his due itself. one officers violated keeping some him-from mate interest Cordova process rights by transferring custody matter, -form of the charges that As an based on initial it is unclear against had filed him. -improper been evidence the district court what ' ,a ly party allowed. Where objects sum, pointed In Cordova has to no fed- admission of a class evidence on a par offi- placed eral case that have would (i.e. ground, relevance), ticular hearsay or cer on had to hold notice he identify particular must he evidence at UNMH, hospi- contravention issue to appellate be entitled to review. result, discharge tal’s As a order. See Thornburgh, United States v. granting quali- district court did err 1197, 1210(10th Cir.2011). immunity fied this claim. event, In any the district court did Jury E. Trial Errors and Instruc- admitting abuse its discretion in evi tions prior dence of shooting. events lodges Cordova also of chal- a series Contextual evidence can be admitted to lenges evidentiary to the district court’s help explain events, especially later where instructions, which, rulings jury might it make one version events more entitle, argues, together trial him new.a or Boyd City Cty. less See likely. judgment a matter of law on Francisco, San Cir. excessive force claims. He claims five er- 2009). Boyd, example, the court rors, which we consider in turn: allowed plaintiffs actions evidence district court evi- improperly admitted psychological prior state to a police prior dence of events to the officers’ ar- it encounter since made the officer’s ver rival that was to the reason- irrelevant' sion of events—that the had been (2) force; of to ableness the decision use aggressor—more the likely. Id. at 948-49. (a) counsel for the also improper- officers both sides Similarly, case contested ly comparative negligence introduced leading up shooting. facts to this Evi force; (b) principles relating to of the use actions,or.mental dence Cordova’s state encouraged to jury members em- prior to shooting could bolster the officers; (c) pathize improperly with the aggressively claim officers’ that he acted counsel; disparaged Cordova’s claims and that, they when encountered him he and. jury legally and instructions were gun they raised his at them before fired. they erroneous because failed to inform - sum, In the district not- court did err-in the jury that an officer’s use force - admitting evidence of' actions Cordova’s must be directed an immediate threat prior shooting. to the and, feasible, the officer must issue where warning using deadly force. before Comparative Negligence 2. argues next Prior Events Cordova officers

1. improperly compara introduced irrelevant argues first district Cordova tive negligence principles jury. to the improperly “hindsight” allowed so-called “Comparative negligence is not applied,in evidence—evidence of which officers suits for violations of federal constitutional could not have been of at the aware time Quezada Bernalillo, rights.” Cty. v. shooting thus af- could not have (10th Cir.1991). F.2d fected the reasonableness their decision particular, to use objects force. to claims Cordova several instances where comparative about in- negligence improperly admission evidence Cordova’s was First, testified, prior police behavior to the encounter. troduced. one officer witness, closing arguments. He contends tion in that Cordova by expert an backed commands, implied jury to the police complied with the defense counsel could have claims also counsel promote but failed to do so. He for would that a verdict Cordova officers, relying on this compounded the error to against who have other lawsuits arguments. testimony during closing decisions, and that deadly force make good faith not have plaintiffs counsel did The statements were relevant to of the claims made belief in some to com An individual’s failure admissible. jury. is relevant an officer’s commands ply with degree posed of threat determining the to arguments are waived. Cordova These Lake Thomson Salt by that individual. arguments at object closing to the not did (10th Cir.2009). 1304, 1314 Cty., 584 F.3d argue plain error trial and does he issued several testified that officer Richison v. Ernest appeal. See review on and that Cordova commands to Cordova Inc., Group, This, ability comply. to apparent had the Cir.2011). turn, objective reasonable on the bears deadly ness of an officer’s decision use 5.Jury Instructions force, to the ult thus relevant i m aspect Finally, challenges one ate issue the case. Cordova jury instructions. The district Rule 3.Golden required Cordova to court’s instructions counsel argues provide defense officers establish that the did empath improperly jurors adequate warning deploying an before encouraged by asking officers them ize with the force. The court instructed the deadly place the officers’ shoes themselves jury “drop command officer’s shooting. It well estab the time of the warning in a weapon” is a sufficient jury party may not lished that a exhort quick- unfolding situation where events are party’s in a “place itself shoes in- ly. this instruction Cordova contends Rice, respect damages.” Shultz represents proper legal adequately (10th Cir.1986). But this standard. argument “is not so-called Rulé Golden urged “[J]ury on the issue of ulti re improper [are when instructions Del (quoting id. v. liability,” mate and in the as a whole viewed] view[ed] Stokes (5th cambre, 710 F.2d 1128 Cir. trial to determine if context entire 1983)), is especially where the issue governing the law they ‘accurately the state of of objective the use reasonableness jury an un provide the with accurate and force, Berry, deadly see Sherrod legal of derstanding the relevant standards Cir.1988) (“When (7th a F.2d and factual issues the case.’” United objective jury the reasonable measures Bedford, States v. action, it must stand in ness of an officer’s (10th Cir.2008) (quoting United States judge his shoes the reasonableness Crockett, Cir. upon information he his actions based the 2006)). court’s de We review the district .”). possessed... give particular jury a cision to or to refuse for abuse discretion. Id. instruction 4.Disparagement of Counsel and Claim feasible, an officer is Where going that hé is Next, required suspect to warn a argues that defense Cordova Garner, appeal doing to shoot before so. See improper emo- counsel-made 11-12, 105 1694. The district U.S. at S.Ct. III. Conclusion its court did abuse discretion mis above, For the reasons set forth the instructing jury the that a state law district court is AFFIRMED. to “drop weapon” command is a- suffi warning unfolding cient where events are GORSUCH, Judge, Circuit concurring testimony The at trial quickly. showed in the judgment. of the officers that one ordered Cordova seeks, The damages first and “drop gun” firing. Aple.App. before because, foremost he says, local law en- warning, given 27. This was a sufficient forcement officials his Fourth or violated unfolding quickly that events wére maybe his Fourteenth Amendment rights posed Cordova an active threat to offi (we’re which) by committing never told throughout cers the encounter. See Sam common law tort malicious prosecution. Arrow, City uel v. Broken Fed. accept premise defendants (10th Cir.2012) Appx. (noting (they Constitution- too somewhere nev- drop court has weapon “treated orders a where) say er something contains resem- ... warning as sufficient when events bling a tort. Both unfolding extremely quickly”.). were .agree proof

sides even a “favorable also contends that an in termination” is an- essential element of stating may struction that officers use their they constitutionalized dis- tort force if “there was a threat of serious agree only over how favorable that termi- physical harm” was deficient for not limit plaintiff argues nation must be. The ing the use force to immediate threats procedural victory should suffice while physical Reading serious harm. any defendants contend termi- whole, however, instructions as a it makes nation speak clearly must more jury given clear that the an accurate plaintiff’s innocence. explanation of the law. That instruc same I‘ Respectfully, parties’ would decline jurors tion told “whether the consider fight. invitation to their We are not suspect posed an immediate threat” and business of expounding common law of whether he made “hostile motions” job torts. Ours is the interpreting towards the App. officers. at 1179. The Constitution. And that isn’t document instruction also said that a warning was litigants may inkblot on pro- some which d require shooting, possible, before when ject hopes their and dreams Tor new and weapon and that an drop “order law, perfected carefully tort but a drafted sufficient cases events where 'are unfold judges charged text applying ac- ing extremely quickly.” Id. Taken con cording original public meaning. to its If a text, clearly the instruction focuses , party to claim a constitutional wishes

jury necessity on the of an immediate right, it is on him to tell us incumbent threat. We find no error the therefore lies, stipulate it where assume or wording of this instruction. with the other it must in there side that be

someplace. sum, sure, In reject we each of To parties only Cordova’s be the hot the alleged agree errors and with district ones to of mali- question the blame here. The (or not) court’s decisions denying prosecution place motion for cious its judgment as a of mo- matter law and his the Constitution is on which there is “one tion for a new trial. an embarrassing diversity judicial opin- of

662 In- 266, complaint. Oliver, plaintiffs the 510 270 resolve Albright v. U.S. ion.” enjoys a deed, 4, 807, 114 know that New Mexico 114 127 L.Ed.2d n. S.Ct. (internal law, quotation provides-a well- opinion) rich common one that (plurality omitted). this “cir against -on which “malicious One abuse marks tort the defined consistently.” always has not written cuit We know under the process,” even Meacham, 1556, 1561 Taylor v. it’s settled of New Mexico tort law terms Cir.1996). Supreme And one the prove any need to plaintiff that a .doesn’t only recently agreed to revisit. has Court See at all. .favorable termination kind of Joliet, Fed.Appx. 590 City v. Manuel DeVaney Thriftway Mktg. Corp., 124 — (7th Cir.2015), granted, cert. U.S. 641 (1997), 512, 277, over- 286 953 P.2d N.M. 890, —, L.Ed.2d 193 783 136 S.Ct. Guest, by Durham v. 145 part ruled (2016). parties tiptoe gin- fact So the the (2009). ah 19 Given N.M. P.3d 204 subject hardly surpris- is gerly around this, to think a no reason just there’s Indeed, suggest respectfully I- ing. any more might possibly “due” plaintiff and,consider effort arena to enter of New process than the State Mexico carefully likely you is to leave question Albright, already See 510 provides. U.S. looking for the exits. J., 283-85, (Kennedy, 114 con- at S.Ct. 807 frequent most judgment).

Consider alternatives curring contenders, the Fourth ly offered as Fourth Amendment. That leaves the Albright, Fourteenth Amendments. longer strong but story there’s Here the opinions were various and but varied way. the same suspect it ends reason Supreme justices at least seven- Albright expressly left plurality in that the agree seemed “substan Court Fourth possibility that open the Amend component tive” the.Fourteenth a home for might provide Amendment nothing contains process clause ment’s due something prosecu malicious tort of like 271-75, 114 See 510 U.S. tort. like But tion. 510 U.S. S.Ct. 807. 281-83, opinion); id. at (plurality S.Ct. 807 originally as understood the Amendment J., concurring 114 S.Ct. 807 (Kennedy, restraining police action before focused 286, 114 id. at S.Ct. judgment); judicial processes. See the invocation J., concurring judgment). in the (Souter, Davies, Recovering Origi Y. Thomas course, might you won Of this much leave Amendment, Mich. nal Fourth L.Rev. dering “procedural” if component (1999). textually the rele And guarantee po process the due remains , language speaks the Amendment vant Albright. tential after But it’s candidate searches and seizures.” “unreasonable long that even when a state since settled Meanwhile, prosecu tort of malicious life, liberty, or deprives person prop itself not traditionally has concerned tion erty, it not violate an does individual’s with, searches re police practices—with procedural process rights long so it due liberty the invo physical before straints provides adequate remedy for the de judicial proceedings—but cation of Palmer, Hudson privation. See judicial In proceedings. misuse of 517, 533, L.Ed.2d U.S. S.Ct. deed, claiming many plaintiffs (1984); Taylor, 451 Parrott v. U.S. here) (including 527, 543-44, 101 L.Ed.2d 420 S.Ct. wrongful damages for a defendant’s (1981); seek Wright, Ingraham v. 430 U.S. (1977). legal processes many years even 51 L.Ed.2d 711 use 97 S.Ct. any search or seizure and while the after no our case quéstion And there’s awaiting trial. liberty at plaintiff remains provides adequate state tort law remedies Kossis, just pretty you Indeed, it’s hard to':see how supra, So See at 1649-52. might squeeze anything looks,,quite these,, like several of ap reasons .courts (this tort pros included) the common of malicious like law peals one already have re ecution into the Fourth Amendment. See jected. See, continuing theory. seizure Kossis, Note, Lyle Malicious Prosecution Kroll, e.g., Becker v. Lawsuits, Claims Section Va. (10th Cir.2007) cases). (collecting And I ). 1635, 1650-52(2013

L.Rev. thought would have enough to resolve this case. For if even we overlook the way only apparent around this parties’ identify failure to a constitutional problem to appears problems invite more action, home for putative their cause of our of its own. of- While tort malicious precedent appear preclude own would to focuses prosecution judi on the misuse of (Fourth either of the obvious or Four proceedings, cial some suggested have Amendment) teenth might they Fourth Amendment too because a alternatives . might pursue criminal defendant remains “seized” for purposes just Fourth Amendment dur wonder, too, You would have to if bend ing pendency of- -but his arrest ing the history language of the Fourth throughout the life of a criminal prosecu Amendment procrustean ways new and liberty tion—even he is at on while bond to prosecution embrace malicious tort See, awaiting e.g., Albright, trial. 510 U.S. unintended, might invite some conse 277-79, J„ at (Ginsburg, 114 S.Ct. 807 quences. What would a Fourth Amend concurring). light But in of the Amend ment-right look like when expanded to text, history long ment’s we’ve con parties-and liberty witnesses at awaiting ceived of seizures as intentional and effec Might trial? trial every subpoena contest liberty tual restraints that suffice to now assume constitutional dimension—and person “a reasonable ... to- lead conclude not, if why Might not? expanding the ” that he is not Michigan free ‘leave.’ marginally Amendment’s reach least di Chesternut, 567, 573, 486 U.S. 108 S.Ct. sincentivize liberty-protecting, use (1988). 100 L.Ed.2d If we were ‘ pre-trial processes previously citation understanding to amend this at this late thought sufficient avoid the Amend so that someone free to leave date,- Carr, application? ment’s See Martinez v. same, bond remains “seized” all the what Cir.2007). 479 And awaiting about the defendant trial on his might undérstanding how new recognizance? own someone .Or served squared Fourth 'Amendment with exist only petty with a citation summons to ing Supreme jurisprudence, Court which at trial? And what appear about the vic traditionally has post-arraign treated the maliciously employed process? tim of civil ment, pre-trial process as detention Or subpoena the witness served with a province of the Fifth and Fourteenth—and compelling appearance? No less than See, not the e.g., Fourth—Amendment? defendant, persons the bonded all these Salerno, . States v. United U.S. subject they to a if fail seizure 746-47, 2095, 95 107 S.Ct L.Ed.2d 697 appear Yet we’ve never trial. consid (1987). “seized”, ered simply them virtue of a Neither is that conditional threat of a the end to the nettles seizure. To do lining path. (again) require Any so would seem the Fourth Amendment now us to eye (police wanting place cast a' historical blind one claim the Fourth action) something concerns of the Fourth like a Amendment Amendment for ordinary would, course, meaning and the of its tort terms. have to Baldwin, (2d Cir.1997); Rich v. And that task would its decide elements. 712, 88 479 N.E.2d Ill.App.3d Ill.Dec. cir disagreement among the surely invite Heider, (1985); Gumm v. Indeed, 363-64 with state law. cuits and tension Fourth-Amend-, (1960). 455, 464-65 Still P.2d Or. that a far from it’s obvious speedy that other states have concluded up of action wind cause would ment-based but do may procedural be claim trial dismissals- á common law looking anything like in' reflect them the merits—and for the tort tra reflect the prosecution, for malicious See, e.g., Miller v. favor. Wat plaintiffs ditionally required proof has of malice kins, 126, 130 (while 200 Mont. has histori P.2d. the Fourth Amendment e seen, (1982). very as the objective fact and we’ve thought to involv cally. been tests) at issue this the actions the institution in which and state “reasonableness” (New Mexico) no requires place took proceedings (something- the case legal at all. And of favorable termination proof a before Amendment has never demanded (as seriously Kossis, found). might hoped) if be we take generally violation is See e the expounding th idea supra, 1649-50. at original public Amendment’s mean Fourth well, are, only hardly the These prosecu ing, anyone claiming malicious a might expect varia themes on which we tion can be found in the Amendment tort -Our case offers one disputes. tions and eye to a to might at least want cast curious among to example what are sure more they cause of action as the elements many. contend The defendants rule existed time the Amendment was prove requiring plaintiff just not something it’s no has adopted—yet one- against him prior criminal action that a something attempted here that would and his-favor, that it was but was terminated (at glance by any at a least unaided way suggesting his inno terminated in briefing)- support the court’s deci seem today cence the merits. The today.* sion so adopts standard and claims do lining If imperative.. all the Fourth as matter of constitutional these brambles path you doubting leave Amendment don’t But no has directed us to other one way, venturing perhaps as a matter of wisdom gone circuit to have so far wondering Meanwhile, they you least about leave many constitutional law. all, attempt. After as a require states so much necessity do matter law, respect judicial for considerations of holding out of common that terminations federalism, grounds, modesty, efficiency, and comi- procedural like the won case, procedural ty, Supreme this Court in due speedy trial suffice. dismissal See, 938, process encourages cases federal e.g., Murphy Lynn, generally * lonely legal suffi From can tell after a brief termination what I look, gloss ... does not prof- cient to maintain the action: of innocence” "indicative settled.”); that, completely by just possibili- appear have been so fered the defendant is Cleveland, 6 Hill ty see also Clark v. some common law courts and alluded necessity is the appearing (N.Y.Sup.Ct.1844). in a comment to the Neither Restatement entirely appearing gloss apparent requirement if of Torts—but not a (as already prove under most has he does text and firm the Restatement's actual not a anything- every tort’s common law requirement like all articulation and settled elements) proceedings jurisdictions criminal common law at the time .the against product were of malice and adoption—let now. him alone See Amendment's Newell, probable See New- A instituted without cause. Martin Treatise on the Law of L. ell, supra, (discussing the cornmon Abuse of at 343 Malicious Prosecution rule”). (1892) ("[J]ust Legal equitable what law’s "better and more Process 327 is a

665 in of ally courts to abstain favor state common Albright, 283-86, 114 510 U.S. at S.Ct. processes try law J., remedial rather than to 807 (Kennedy, concurring in judg them in name of the ment); recreate Constitu- Browder, 787 F.3d at 1084-85 why tion. to pretty And it’s hard see we (Gorsuch, J., concurring); Williamson ignore should those same considerations Cty. Reg’l Planning Comm’n v. Hamilton option simply and that same because Bank, 172, 195, 473 U.S. 105 S.Ct. 87 might something someone claim like the (1985); McCabe, L.Ed.2d 126 Newsome v. might tort find a (7th Cir.2001); 256 F.3d 750-51 Scha home the Fourth than the Four- rather Huntsville, per City Carefully devised, teenth Amendment. (5th Cir.1987); 718 Mann v. City Tuc tested, pretty and often ancient state tort son, Police, Dep’t F.2d 797-98 law is readily available to address the (9th Cir.1986) (Sneed, J., concurring in the plaintiffs injury claimed in this case. Nei- result). surprise ther can it come as a existing objections to abstention are familiar state common usually sup- law courts will unpersuasive. but argued Some have ply remedy sound and sufficient when § remedy 1983 authorizes federal courts to claims (possibly) constitutional dimen- .of. constitutional injuries so federal courts point sion at stake: the whole must any brought decide claim under its England common law as it evolved See, auspices. e.g., Albright, at 510 U.S. country this through centuries was to 315-16, (Stevens, J., S.Ct. dissent thought rights

vindicate the fundamental ing). Some have ‘also suggest seemed to life, to enjoyment liberty, thé prop- that state courts ap cannot'be trusted to erty. barreling Before down the constitu- ply their own common law to fairly their road, why tional at pause least to against own citizens in suits state officials. possibility consider the of abstaining in Kossis, supra, But, See at 1661 & n. 161. favor of proceedings? common law Ask- respectfully, long it’s since settled ing really first: is there to need decide statutory power proceed to al does not any gravity matter or constitutional ways so, duty entail do for federal might already supply the common law courts not infrequently they abstain when remedy parties pro- whatever seek power See, have the e.g., decide. Youn ject sure, onto the To Constitution? be Harris, ger 43-44, 401 U.S. 91 S.Ct. Parrott abstention doctrine is often said to 746, 756, 760, (1971); 27 L.Ed.2d 669 Par originated procedural have pro- due ratt, 540-44, 1908; at U.S. 101 S.Ct. cess setting (though good there’s reason to Browder, J., (Gorsuch, at account, question that see Browder v. City concurring). And even if may there be Albuquerque, 787 F.3d Cir.2015) (Gorsuch, J., some when circumstances courts federal concurring)). But have act because even I state courts are accepting premise cannot think unable intervene, unwilling of a no good why suggests one reason the doctrine should anything to that or like or in particular limited class case mine run of it. cases—why contrary, abstention cases like To the should turn question every indication in this is plaintiff which amendment case .that (or might happen to invoke hope might would have fared much un better invoke) as right the source of his der than rather state tort law he does our under than question on the whether state law is constitutionalized facsimile state tort adequate injury alleg- surely vindicate it is law—and least a ironic little es—as indisputably gener- it here. See that in the of protecting name individual wind'up in cases infrequently we not

rights effectively diminishing them.

like this one 285-86, 114 S.Ct. Albright, 510 U.S.

See J., judg concurring (Kennedy, (Gor Browder,

ment); at 1084

such, J., concurring). end', and doubts the'difficulties

In the all for a tort of finding a home with

associated in the Constitution that “some the obvious:

confirm for me law are resolved of ... tort best

questions 510 U.S. at

by” Albright, tort law. J., (Kennedy, concurring in

114 S.Ct. 807 parties cannot judgment). When of their identify the source

be bothered .complaint,-when

supposedly constitutional constitutional,

the avenues to a home doubt, per- when there’s

lined

fectly common law route free and clear any wrong alleged in remedy

available case, just I not see the case for do puta- .an of a

entering fight over element may cause of action that

tive constitutional no one

not exist and before us needs. judge they judge judges

Often best when

least—and, I respectfully, believe this

such case. CLUB, Plaintiff-Appellant,

SIERRA AND ELECTRIC

OKLAHOMA GAS

COMPANY, Defendant-

Appellee. 14-7065.

No. Appeals,

United States Court of Circuit.

Tenth 8, 2016.

March

Case Details

Case Name: Cordova v. City of Albuquerque

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Mar 8, 2016

Citation: 816 F.3d 645

Docket Number: 14-2083

Court Abbreviation: 10th Cir.