{1} Plaintiff Michael Dickson brought civil rights actions against Defendants Officer Joshua Parkin, City of Clovis, and Clovis Police Department after Defendant Parkin
BACKGROUND
{2} On May 15, 2007, Defendant Parkin stopped Plаintiff for failing to dim his fog lights while driving. Defendant Parkin cited Plaintiff for violating a city ordinance regarding the fog lights and for driving without insurance. While talking to Plaintiff, Defendant Parkin noticed a handgun in Plaintiffs ear. Defendant Parkin called dispatch and requested a criminal history and was informed that Plaintiff was a convicted felon. Defendant Parkin so informed Plaintiff, and Plaintiff responded that he was not a convicted felon, producing an order from Texas (the Texas order) that stated that Plaintiff had a deferred conviction. Upon examining the document, Defendant Parkin did not find anything that indicated that the conviction about which dispatch had informed Defendant Parkin was deferred or that the document was authentic. Therefore, believing Plaintiff to be a convicted felon, Defendant Parkin arrested'Plaintiff on a charge of felon in possession of a firearm.
{3} As a result of a preliminary hearing and a separate hearing on Plaintiffs motion to suppress, Plaintiffs charges and citations were dismissed. On December 3, 2007, Plaintiff filed this civil case against Defendants, сlaiming that Defendant Parkin’s actions and the Clovis Police Department’s inadequate training resulted in negligence, malicious prosecution, assault and battery, wrongful arrest, false imprisonment, and a violation of 42 U.S.C. § 1983 (2006). Plaintiff then filed a motion for summary judgment, to which Defendants responded and filed a cross-motion for summary judgment. On September 8, 2008, the district court issued a decision letter, followed by an order on October 6, 2008, denying Plaintiffs motion and granting Defendants’ cross-motion for summary judgment. The district court denied Plaintiffs motion for summary judgment because it found that a material question of fact exists as to whether Plaintiff was a felon on the night of his arrest. It granted Defendant Parkin qualified immunity, determining that “there was no аpparent violation of a clearly established constitutional right” because it was reasonable for Defendant Parkin to have been uncertain as to whether a Texas deferred adjudication would be treated the same as a New Mexico deferred sentence. Since Defendant Parkin was entitled to qualified immunity, the district court granted him summary judgment as a matter of law. Finally, the district court granted summary judgment to Defendant City of Clovis, finding no evidence of any policy or custom that allowed or encouraged officers to arrest a citizen in violation of his or her rights. Plaintiff appeals.
DEFENDANT PARKIN: QUALIFIED IMMUNITY AND SUMMARY JUDGMENT
{4} We initially address Plaintiffs argument that the district court erred because it denied his motion for summary judgment due to its finding that a question of fact exists as to whether Plaintiff was a felon at the time he was arrested, yet simultaneously granted Defendant Parkin summary judgment on the basis of the existence of the same essential question of fact. Plaintiff has misconstrued the district court’s findings. The district court did deny Plaintiffs motion for summary judgment because there was a quеstion of material fact as to Plaintiff’s status as a felon on the night of the arrest. Plaintiffs apparent confusion arises because, although the district court did rely on this same fact in its qualified immunity analysis, it did not grant Defendant Parkin summary judgment because of that fact but, rather, granted Defendant Parkin qualified immunity, which entitled him to summary judgment as a matter of law. Cf. Garсia-Montoya v. State Treasurer’s Office,
{5} “Summary judgment is proper if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. The non-moving party is entitled to all reasonable inferences in support of its claim that an issue of material fact exists.” Sanders v. Montoya,
{6} We review the applicability of Section 1983 immunity de novo. Starko, Inc. v. Gallegos,
{7} In this case, therefore, we must determine (1) whether Defendant Parkin’s arrest of Plaintiff for being a felon in possession of a firearm violated Plaintiffs right against being arrested without probable cause under the Fourth Amendment to the United Stаtes Constitution and (2) whether that right was clearly established at the time of the arrest. As has been well established in New Mexico, arrest without probable cause is indeed a violation of the Fourth Amendment protection against illegal search and seizure. See State v. Brisker,
{8} “Whether probable cause exists is a mixed question of law and fact.” State v. Granillo-Macias,
{9} Plaintiff does not dispute that Defendant Parkin observed a firearm in Plaintiffs car, that Plaintiff confirmed ownership of the gun, or that Defendant Parkin then requested a criminal history from dispatch. Plaintiff also does not dispute that dispatch informed Defendant Parkin that Plaintiff was a felon or that Defendant Parkin approached Plaintiff with this information. Plaintiff instead argues that when Plaintiff responded that he
{10} Assuming without deciding that Plaintiffs assertions of the law regаrding the impact of deferred adjudications on the statute are true, a question of material fact nonetheless remains as to whether it was clear if Plaintiff was a felon in possession of a firearm at the time of his arrest. This question of fact remains not because the area of law presents uncertainty, as the district court found, but rather because of the evidence in the record. See State v. Garcia,
{11} Plaintiff argues that when presented with this evidence, Defendant Parkin should have investigated further because the evidence would have negated probable cause and because officers may not ignore available evidence or undisputed facts that a reasonable officer would consider. However, Plaintiff provides no evidence or authority to show that a reasonable officer would not have made an arrest until the officer could further investigate an out-of-state order containing no added clarity or relevant information. As such, we assume no such authority exists. See In re Adoption of Doe,
{12} We note that Plaintiff does not argue in his brief in chief that Defendant Parkin is subject to Sectiоn 1983 liability because he stopped Plaintiff without reasonable suspicion, thereby unlawfully detaining Plaintiff in violation of Plaintiffs clearly established Fourth Amendment rights. Therefore, we do not address this argument. See Cain v. Champion Window Co. of Albuquerque, LLC,
{13} The district court did not err in granting Defendant Parkin qualified immunity because Defendant Parkin reasonably believed that he had probable cause to arrest Plaintiff. As a result, the district court correctly granted Defendant Parkin summary judgment as a matter of law. Similarly, the district court did not err in concluding that a question of material fact exists as to Plaintiffs felony status at the time of аrrest, thereby denying Plaintiffs motion for summary judgment.
CITY OF CLOVIS: SUMMARY JUDGMENT
{14} Plaintiff next contends that the district court erred in granting Defendant City of Clovis’ motion for summary judgment on the basis of a lack of evidence of municipal liability. Specifically, Plaintiff argues that the municipality had customs and policies of inadequate police training and is, therefore, liable under Sectiоn 1983. Because Defendant Parkin is entitled to qualified immunity, there is no basis for municipal liability.
[11-13] {15} Section 1983 liability cannot be based upon the doctrine of respondeat
{16} Plaintiff fails on the first point. As established above, when Defendant Parkin arrested Plaintiff for felon in possession of a firearm, he did not deprive Plaintiff of his constitutional right because the question of Plaintiffs felony status at the time of the arrest was uncertain and, as a result, Defendant Parkin reasonably believed that he had probable cause. The district court did not err in granting summary judgment to Defendant City of Clоvis on the grounds that no evidence exists for municipal liability.
REMAINING TORT ACTIONS
{17} Plaintiff finally argues that the district court erred in dismissing his remaining causes of action for negligence, false imprisonment, malicious prosecution, assault and battery, and wrongful arrest. Plaintiff first claims that Deputy Parkin was negligent because he did not take the time to cheek the validity of Plaintiffs felony conviction after he was presented with the Texas order.
{18} NMSA 1978, Section 41-4-4(A) (2001) grants public employees immunity from tort actions except for those waived by the Religious Freedom Restoration Act and by NMSA 1978, Sections 41-4-5 to -12 (1976, as amended through 2007). Section 41-4-12 states that Section 41-4-4 immunity
does not apply to liability for personal injury, bodily injury, wrongful death or property damage resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, defamation of character, violation of property rights or deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by lаw enforcement officers while acting within the scope of their duties.
A plaintiff must specifically allege one of the enumerated torts listed in the statute to overcome an officer’s immunity under Section 41-4-4. See Lessen v. City of Albuquerque,
{19} Moreover, it is well established in New Mexico that Section 41-4-12 immunity is not waived in an action for negligence standing alone. Lessen,
{20} Additionally, allegations of negligence based on one of the torts specified in
{21} The remaindеr of Plaintiffs claims— false imprisonment, malicious prosecution, assault and battery, and wrongful arrest— are each specified torts listed in Section 41-4-12 and, as such, could subject Defendant Parkin to civil liability. However, Plaintiffs claims for false imprisonment, false arrest, and malicious prosecution presuppose that Defendant Parkin did not have probable cause to arrest Plaintiff for felon in possession of a firearm. See Santillo v. N.M. Dep’t of Pub. Safety,
CONCLUSION
{22} We affirm the district court’s grant of Defendants’ motion for summary judgment and dismissal of Plaintiffs motion for summary judgment and remaining causes of action.
{23} IT IS SO ORDERED.