AMENDED MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Defendant Padilla’s Motion for Summary' Judgment Based on Qualified Immunity, filed April 10, 2015 (Doc. 25)(“Motion”). The Court held a hearing on October 9, 2015. The primary issue is whether Defendant Pablo Padilla, a police officer with the Albuquerque Police Department in Albuquerque, New Mexico, is entitled to qualified immunity when he allegedly kneed Plaintiff Jeremy Martin’s groin and threw him to the ground while attempting to arrest him. Because the parties dispute whether Padilla struck Martin in the groin, the reasonableness of Padilla’s use of force is disputed and the Court cannot properly grant summary judgment. Accordingly, the Court will deny Padilla’s Motion regarding Martin’s claims that Padilla’s actions violated his Fourth-Amendment rights.
FACTUAL BACKGROUND
On April 25, 2014, Martin was driving a vehicle in Albuquerque when Padilla, “who was on duty and acting in his capacity as a police officer at the time,” stopped Martin for traffic violations.
Padilla repeatedly directed Martin to sit down, but Martin refused. See Motion ¶ 3, at 3 (setting forth this fact); Response, at 3 (not disputing this fact). During a period of approximately two minutes, Padilla asked Martin to Sit down “more than thirty times.” Motion ¶¶4-5, at 3 (setting forth this fact). See Response at 3 (not disputing this fact). Martin “refused to obey Defendant Padilla’s instructions.” Motion ¶ 6, at 3 (setting forth this fact). See Response at 3 (not disputing this fact); Despite his failure to sit down, Martin never exhibited any -signs of aggression, never wielded a weapon, kept his hands in plain sight, and repeatedly attempted to have a dialogue with Padilla. See Response ¶ 2, at 3 (setting forth this fact).
Padilla then attempted to arrest Martin without warning him that he was doing so, leading to a physical altercation. See Motion ¶7, at 3 (setting forth this fact).
Several hours later, after being- released from the Metropolitan Detention Center, Martin went to Presbyterian Hospital to address his “testicular pain, discoloration and swelling.” Response ¶ 8, at 4 (setting forth this fact).
PROCEDURAL BACKGROUND
Martin filed his Complaint in the County of Bernalillo, Second Judicial District Court, State of New Mexico. See Complaint at 1. Martin alleges seven causes of action. First, he asserts that Padilla’s use of excessive force violates the Fourth Amendment to the Constitution of the United States of America and 42 U.S.C. § 1983. iSee Complaint ¶¶ 33-40, at 5-6. Second, he alleges that Padilla committed a battery for which he can recover under the New Mexico Tort Claims Act, NMSA § 41-4-12. See Complaint ¶¶ 41-47, at 5. Third, he contends that the City of Albuquerque violated § 1983 when it “fostered a culture of violence and excessive force,” “failed to properly train and supervise APD officers regarding the use of force,” and failed to prevent “the culture of excessive force at APD, which caused Plaintiffs injury.” Complaint ¶¶ 49-59, at 6-7. Fourth, Martin asserts that Padilla violated his rights to Due Process under the Fifth and Fourteenth Amendments to the Constitution of the United States. See Complaint ¶¶ 60-65, at 7-8. Fifth, Martin alleges a false arrest claim under the Fourth Amendment. See Complaint ¶¶ 66-71, at 8. Sixth, Martin contends that the City of Albuquerque’s negligence led to Padilla’s battery. See Complaint ¶¶ 72-80, at 8-9. Seventh, Martin asserts that Padilla “intentionally and in bad faith destroyed a video recording of his attack on the Plaintiff,” thereby spoliating evidence. Complaint ¶¶ 81-83, at 9. He seeks relief other than a money judgment in addition to>smonetary relief exceeding $25,000.00. See Court-Annexed Arbitration Certification, filed November 6, 2014 (Doc. 1-3).
The City of Albuquerque removed the case to federal court on November 6, 2014. See Defendants’ Notice of Removal, filed November 6, 2014 (Doc. l)(“Notice of Removal”). The City of Albuquerque asserts that, because the Complaint sets forth a claim arising under the Constitution and laws of the United States, the Court has original jurisdiction pursuant to 28 U.S.C. § 1331. See Notice of Removal ¶ 4, at 1-2. The City of Albuquerque answered Martin’s Complaint on November 17, 2014. See City’s Answer at 1. It denies the majority of the Complaint’s allegations and asserts affirmative defenses. See City’s Answer at 8-12. Padilla answered Martin’s Complaint on November 24, 2014. See Padilla’s Answer. Padilla denied the majority of the Complaint’s allegations and alleges affirmative defenses. See Padilla’s Answer at 7-9.
Padilla filed the Motion on April 10, 2015. He seeks summary judgment under rule 56 of the Federal Rules of Civil Proce
Martin responded to Padilla’s Motion on April 24, 2015. See Response at l. Martin maintains that Padilla is not entitled to qualified immunity because his “right to be free from excessive force was clearly established.” Response at 5, He argues that he need not show “clearly established law that a severe strike to the genitals is unconstitutional, but only that unreasonable use of force was prohibited by law prior to the incident in question.” Response at 5. Next, he asserts that Padilla’s actions were not reasonable. See Response at 5-6. In the alternative, Martin urges the Court to “defer its ruling and allow the Plaintiff an opportunity to conduct discovery to further establish that Officer Padilla’s actions were not reasonable.” Response at 7.
Padilla replied tó Martin’s Response on May 7, 2015. See Defendant Padilla’s Reply to Plaintiffs Response to his Motion for Summary Judgment Based on Qualified Immunity, filed May 7, 2015 (Doc. 33)(“Reply”). Padilla maintains that :his actions were “objectively reasonable,” because a reasonable officer facing an “intoxicated, combative individual who was resisting arrest” could have concluded that the individual was unwilling to listen to anything he had to say and that arresting him was necessary. Reply at 5-6. Moreover, Padilla contends that “there is no evidence that Defendant Padilla was attempting to inflict an injury on the Plaintiff.” Response at 6: Instead, he asserts that any contact with Martin’s genitals was inadvertent. See Reply at 6. He contends that gross negligence is insufficient to trigger § 1983 liability. See Reply at 6. In response to Martin’s request to stay the Motion, Padilla argues that the Court should stay a rule 56 motion only if the nonmovant shows that it “cannot present facts essential to justify its opposition.” Reply at 7. Here, Padilla contends, Martin already responded to Padilla’s Motion, so the Court should not grant a stay. See Reply at 7-8.
The Court held a hearing on October 9, 2015. It reviewed the video that Padilla recorded while arresting Martin. Padilla emphasized that the video does not reveal any battery. See Transcript of Hearing at 6:14-20 . (Martinez)(taken October 9, 2010)(“Tr.”).
Martin concedes that he was' not being cooperative with Padilla’s orders to sit down, but alleges that he did not fight Padilla, attempt ■ to flee, or exhibit any signs of aggression. See Tr. at 26:12-17 (Court, .Loman). Furthermore, he argues that driving while under the influence of alcohol is, a nonviolent misdemeanor, and that “force is least justified against nonviolent misdemeanants, who do not flee or actively resist arrest.” Tr. at 35:14-36:1 (Lomqn).
LAW REGARDING SUMMARY JUDGMENT
■ Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The movant bears the initial burden of ‘showing] that -there is an absence of evidence to support the non-moving party’s case.’ ” Herrera v. Santa Fe Pub. Sch.,
The party opposing a motion for summary judgment must “set forth specific facts -showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc.,
Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations1 unsupported by specific facts, or speculation.” Colony Nat’l Ins. Co. v. Omer, No. CIV 07-2123 JAR,
To deny a motion for summary judgment, genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be .resolved in favor of either party.” Anderson v. Liberty Lobby, Inc.,
When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue — whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc.,
At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts____ Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec. ’ Industrial Co. v. Zenith Radio Corp., 475 U.S. [at] 586-587 [106 S.Ct. 1348 ] . . . (footnote omitted). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. [at] 247-248 [106 S.Ct. 2505 ].... When opposing parties tell two different stories, one of which is blatantly contradicted by the . record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes .of ruling on a motion for summary judgment.
That was the case here with regard to the factual issue whether respondent ■ was- driving in such fashion as to endanger human life. Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should .not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.
Scott v. Harris,
The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County,
■ [B]ecause at summary judgment we are beyond the pleading phase of the litigation, a plaintiffs version of the facts ■must find support in the record: more specifically, “[a]s with any motion for summary, judgment, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts.” York v. City of Las Cruces,523 F.3d 1205 , 1210 (10th Cir.2008) (quoting Scott,550 U.S. at 380 ,127 S.Ct. 1769 ); see also Estate of Larsen ex rel. Sturdivan v. Murr,511 F.3d 1255 , 1258 (10th Cir.2008).
Thomson v. Salt Lake Cnty.,
In evaluating a motion for summary judgment based on.qualified ¡immunity, we take the facts “in the. light most favorable to the party asserting the injury.” Scott v. Harris,550 U.S. 372 , 377,127 S.Ct. 1769 ,167 L.Ed.2d 686 (2007). “[T]his usually means adopting ... the plaintiffs version of the facts,” id. at 378,127 S.Ct. 1769 , unless that version “is so utterly discredited by the record that no reasonable jury could have believed him,” id. at 380,127 S.Ct. 1769 . In Scott, the plaintiffs testimony was discredited by a videotape that completely contradicted his version of the events.550 U.S. at 379 ,127 S.Ct. 1769 . Here, there is no videotape or similar evidence in the record to blatantly contradict Mr. Rhoads’ testimony. There is only other witnesses’ testimony' 'to oppose his version of the facts, and our judicial system leaves credibility determinations to the jury. And given the undisputed fact of injury, Mr. Rhoads’ alcoholism and memory problems go to the weight of his testimony, not its ad-missibility____ Mr. Rhoads alleges'that his injuries resulted from a beating rendered without resistance or provocation. If believed by the jury, the events.he describes are sufficient to support a claim of violation of clearly established law under Graham v. Connor,490 U.S. 386 , 395-96,109 S.Ct. 1865 ,104 L.Ed.2d 443 (1989), and this court’s precedent.
Rhoads v. Miller,
THE IMPORTANCE OF TRIALS
The Court was disappointed when a recent clerkship applicant opened his cover letter by pointing to a recent article in The New Yorker quoting the Honorable Shira Scheindlin,. United States District Judge for the Southern District of New York, as saying: “I don’t love trials. They are not a good way to tell a story.” Jeffrey Toobin, Rights and Wrongs, The New Yorker (May 27, 2013), available at http://www. newyorker.com/magazine/2013/05/27/ rights-and-wrongs-2. She went on: “What
It.is troubling that a trial judge does not like trials. If the nation’s trial judges do not like or believe in trials, how do we expect the people, to accept trials? The American judicial system is built on the premise that the trial is the best truth-seeking mechanisms ever devised. Thomas Jefferson explained the importance, of trial to Thomas Paine, saying: “I consider [trial by jury] as' the only anchor ever yet imagined by man, by which, a government can be held to the principles of its constitution.” Thomas Jefferson to Thomas Paine, July 11, 1789.
Judge Scheindlin complains that trials “are not efficient.” That thought is hardly original. Edson Sunderland — a prolific writer who authored more than 130 articles on legal issues — explained in 1915:
'[T]he people and the courts in most American jurisdictions have departed from the common law practice and have introduced a principle calculated to undermine the very institution which they wish to strengthen. That is to say, through the rules prohibiting judges from commenting on the weights of. the evidence, juries tend to become irresponsible, verdicts- tend to become matters of chance, and the intricacy of procedure, with its cost, delay and liability to error, has increased so much as to threatened popular respect for courts of justice.
Edson R. Sunderland, The Inefficiency of the American Jury, 13 Mich. L. Rev. 302, 302 (1915). But the idea that our judicial system is not'efficient has not always been considered a criticism. In Federalist Paper 78, Alexander Hamilton noted that “the independence of the judges may be essential safeguard against the effects of occasional ill humors in the society.” The Federalist No. 78 (Alexander Hamilton). That the judiciary is deliberative, perhaps slowing down an overheated political process and carefully reviewing the political branches’ decisions, is a good thing.
Also, when people say that they do not like trials, they are probably including jury trials. Such modern criticism is contrary to .the praise that the Founders had of trials, especially jury trials. They considered juries, a bulwark of our liberty. As the Court concluded in United States v. Courtney:
The Court concludes that, the Supreme Court and especially Tenth Circuit precedent allowing the jury to know about sentencing ramifications only if its participation in sentencing .is required, and precedent preventing the jury from learning about its nullification right, are inconsistent with trial practices at the Founders’ time, and that these practices have eroded the Sixth Amendment jury trial right as the Farmers understood that right.
United States v. Courtney,
A criticism of trials as inefficient is an elitist.viewpoint. Instead of seeing trials as one of the most democratic things the United States of America does, week after week, - across the country, the elite see juries as a roadblock, hurdle, or speed bump in the elites’ narrative of how things ought to be. Ask any criminal defendant
Judge Scheindlin says that trials are not a good way to tell a story. Again, without a trial, there would likely be no cross-examination. Cross-examination has been called, appropriately so, “the greatest legal engine ever invented for the discovery of truth.” 5 J. Wigmore, Evidence § 1367 (3d ed.1940). Without trials and cross-examination, the search for the truth would be severely compromised. Again, the purpose of the judiciary is not to tell good stories that the elite want the nation to hear; the purpose of trials is to find the truth, and to allow, the jury — the people— to find the truth. The process — not just the end result — is important to how this story ends, to how the public accepts the end of the story, and to how the nation 'or community decides the appearance of justice has been satisfied. Getting the answer is only one-half of the district court’s task. The other half is to uphold the appearance of justice.
Judge Scheindlin says that, trials are often tedious. Theré are times trials are tedious for judges and juries. It is less likely that they are tedious for the litigants for whom, in.most cases, the trial is all about. Trials are often tedious for judges at times because judges have, seen it- one-hundred or more times.
Trials can be tedious for juries at times, but for different reasons. Many jurors have not seen a trial from beginning to end, so the newness of everything usually prevents boredom. Jurors also have an important task: determining which story is true. When they make that decision and they think that it-is time to deliberate, they are done. Juries usually get tired or frustrated when the lawyers — oblivious to the jury’s signal that they are toast — beat points or arguments after the jury is ready to give its decision. Good lawyers know how fast trials go on television, and they do not try to drag them out in real life.
'Trials aré not tedious for the lawyers. Trials may be exhausting, but not tedious. The lawyers have to stay alert and on their
Judge Scheindlin says that what she really likes to do is write opinions: “There you get to do what you think is right, what you believe in. You’re pushing the margin of the envelope, being willing to be creative.” Toobin, supra. There are times to write opinions, but there are also times to try cases. The Court is concerned that qualified immunity, summary judgment, heightened pleading requirements, and the Sentencing Guidelines’ hefty reward for acceptance of responsibility too often makes federal district judges opinion writers than trial judges. The Court is not convinced that development is entirely good for the nation. Trials — especially those that include juries — might send louder and mere definitive messages to society than judges’ opinions, particularly trial judges’ opinions.
Judge Scheindlin says that she likes to write opinions because “you get to do what you think is right____” Toobin, supra. It is unclear, however, why getting the law right and giving it to a jury in a jury instruction is not doing what is right, too. Nothing is more democratic than what happens in federal courtrooms all across the country each day — putting aside the professionals for a moment, summoning to court the citizens, and having lay people apply the law that the political branches have passed, signed, enacted, and enforced, to the facts of the case. That process is very special. Anyone who has conducted voir dire and taken a verdict in the United States District Court for the District of New Mexico has felt the almost transcendent process of people coming from all across the fifth largest state in the union in terms of land, from twenty-one pueblos and four reservations, and a mixture of cultures, from all social-economic backgrounds, some single, some married, some gay, some straight, some conservative, some liberal, some religious, some atheist or agnostic, to congregate for a few days, and become a group of citizens who make a decision — unanimously—about an issue of federal law. In contrast to a United States Congress that struggles to agree by fifty-one percent on many issues, what juries do unanimously, day after day, is truly remarkable. In a democracy, what the people say as a jury should mean more — say more — than what an unelected district court judge says in his or her opinion. In a Fourth Amendment case, despite the ways judges dress it up in a lengthy jury instruction, the Court basically hands a copy of the Bill of Rights to the jury and asks: “What is reasonable? What is excessive?” In a democratic society, it should not be as important what a district judge believes as what the elected officials believe and enact, and what the citizens, in their jury verdicts, decide.
Judge Scheindlin states that, when she is writing opinions, “[yjou’re pushing the margins of the envelope, being willing to be creative.” Toobin, supra. In the United States, a democratic society, the federal courts have often caused more problems than helped when they have been creative and pushed the margins of the envelope. The Italian Renaissance painter Giotto di Bondone was asked to paint little squares on the side of altars in Florence. If he had found that job tedious or unfulfilling, we might not have gotten some of the most beautiful paintings from the Italian Renaissance, including The Virgin and Child Enthroned with Angels (circa 1306-1310). The cy pres doctrine is an
for several reasons: (i) class actions are disputes between parties and the money damages should remain among the parties, rather than be distributed .to some third party; (ii) it is unseemly for judges to engage in the selection of third-party beneficiaries and to distribute class action damages to third parties; (iii) judges are often not in the bést position to choose a charitable organization that would best approximate the unpaid class members’ interests; and (iv) 'the doctrine encourages charitable organizations, and plaintiffs’ lawyers,-to lobby the court for ey pres awards.
In re Thornburg Mortgage, Inc. Securities Litigation,
While a federal judge’s role in that republican form of government is very important, and can be personally very fulfilling from a career standpoint, when the judge begins to depart from his or. her role, it can cause problems. . A federal judge must be.careful, cautious and conservative. Jeffrey Toobin has said of Judge Scheindlin: “Scheindlin’s dedication to protecting citizen’s rights is beyond question; it is less clear that she has the wisdom, or even the ability, to impose her vision in the real world of New York.” Toobin, supra, at 15. As smart as any federal judge may be, in a democratic society, judges largely lack the wisdom of the collective and the ability of many in an increasingly complex society; and should be hesitant to impose their vision of the world on their community. In a republic, that task is appropriately left to the majo-ritarian processes of the electoral system, circumscribed, of course, by the guarantees of the Constitution.
LAW REGARDING LIABILITY FOR CONSTITUTIONAL VIOLATIONS UNDER 42 U.S.C. § 1983
Section 1983 of Title 42 of the United States Code provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within, the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for. redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District , of Columbia.
1. Color of State Law.
“Under Section 1983, liability attaches only to conduct occurring -‘under color of law.’ ” Gallagher v. Neil Young Freedom Concert,
The under color of law determination rarely depends on a single, easily , identifiable -fact, such as the officer’s attire, the location of the act, or whether or not the officer aets in accordance with his or her duty. Instead one must examine “the nature and circumstances of the officer’s conduct and the relationship, of that conduct to the performance of his official duties.”
David v. City & Cnty. of Denver,
2. Individual Liability.
Government actors may be liable for the constitutional violations that another committed, if the actors “set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights,” thus establishing the “requisite causal 'connection” between the government actor’s conduct and a plaintiffs constitutional deprivations. Trask v. Franco,
The Tenth Circuit has found liability for those defendants who proximately caused an injury alleged under § 1983 and stated that the fact that the “conduct of other people may have concurrently caused the harm’ does not change the outcome as to [the defendant],” so long as there was not a superseding-intervening cause of a plaintiffs harm. Lippoldt v. Cole,
Even if a factfinder concludes that the residential search was unlawful, the officers only “would be liable for the harm ‘proximately’ or ‘legally caused by their tortious conduct.” Bodine v. Warwick, 72 F.3d 393 , 400 (3d Cir.1995). “They would not, however, necessarily be liable for all of the harm caused in the ‘philosophic’ or but-for sense by the illegal entry.”72 F.3d at 400 . In civil rights cases, a superseding cause, as we traditionally understand it in tort law, relieves a defendant of liability. See, e.g., Warner v. Orange Cnty. Dep’t of Prob.,115 F.3d 1068 , 1071 (2d Cir.1996); Springer v. Seaman,821 F.2d 871 , 877 (1st Cir.1987), abrogated on other grounds by Jett v. Dallas Indep. Sch. Dist.,491 U.S. 701 [109 S.Ct. 2702 ,105 L.Ed.2d 598 ] (1989).
Trask v. Franco,
Suppose that three police officers go to a suspect’s house to execute an arrest warrant and that they improperly enter without knocking and announcing their presence. Once inside, they encounter the suspect, identify themselves, show him the warrant, and tell him 'that they are placing him under arrest. The suspect, however, breaks away, shoots and kills two of the officers, and is preparing to shoot the third officer when that’ officer disarms the suspect and in the process injures him. Is the third officer .necessarily .liable for the harm caused to the suspect on the theory that the illegal entry without knocking and announcing rendered any subsequent use of force unlawful? The obvious -answer is “no.” [The suspect’s conduct would constitute a “superseding” cause, see Restatement (Second) of Torts § 442 (1965), that would limit the officer’s liability. See id, § 440.
Trask v. Franco,
the reasonable foreseeability of an intervening act’s occurrence is a factor in determining whether the intervening act relieves the actor from liability for his antecedent wrongful act, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was wrongful or foreseeable, the question should be left for the jury.
Trask v. Franco,
LAW REGARDING QUALIFIED IMMUNITY
Qualified immunity recognizes the “need to protect officials who.are required to exercise then- discretion and the related public interest in encouraging the vigorous exercise of official authority.” Harlow v. Fitzgerald,
Under § 1983 (invoked in this case) and Bivens v. Six Unknown Fed. Narcotics Agents,403 U.S. 388 [91 S.Ct. 1999 ,29 L.Ed.2d 619 ] (1971), a plaintiff may seek money damages from government officials who have violated her constitutional or statutory rights. But to ensure that fear of liability will not “unduly- inhibit officials in the discharge of their duties,” Anderson v. Creighton,483 U.S. 635 , 638 [107 S.Ct. 3034 ,97 L.Ed.2d 523 ] (1987), the officials may claim qualified immunity; so long as they have not violated a “clearly established” right, they are shielded from personal liability, Harlow v. Fitzgerald,457 U.S. 800 , 818 [102 S.Ct. 2727 ,73 L.Ed.2d 396 ] (1982). That means a court can often' avoid ruling omthe plaintiffs claim that a particular right exists. If prior case law has not clearly settled the right, and so given officials fair notice of it, the court can simply dismiss the claim for money damages. The court need never decide whether the plaintiffs claim, even though novel or otherwise unsettled, in fact has merit.
Camreta v. Green,
Issues of qualified immunity are best resolved at the “earliest possible stage in litigation.” Pearson v. Callahan,
Qualified immunity shields government officials from liability where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”' Pearson v. Callahan,
1. Procedural Approach to Qualifíed Immunity.
The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand.”
The Supreme Court recognizes seven circumstances where district courts should proceed directly to and “should address only” the clearly established prong of the qualified immunity analysis: when (i) the first, constitutional violation question “is so factbound that the decision provides little guidance,for future cases;” (ii) “it appears that the question will soon be decided by a higher'court;” (iii) .deciding the constitutional question requires “an uncertain interpretation of state law;” (iv) “qualified immunity is asserted at the pleading stage,” and “the precise factual basis for the ... claim ... may.be hard to identify;” (v)'tackling the first element “may create a risk of bad decisionmaking,” because of inadequate briefing; (vi) discussing both elements risks “bad decisionmaking,” because the court is firmly convinced the law is not clearly established and is thus inclined to give little thought to the existence of the ■ constitutional right; or (vii) the doctrine of “constitutional avoidance” suggests the wisdom of passing on the first constitutional question, because “it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.” Kerns v. Bader,
Regarding the last of these seven circumstances, the Supreme Court has clarified that courts may “avoid avoidance” and address the first prong before the second prong in cases involving a recurring fact pattern where- guidance on the constitutionality of the challenged conduct is necessary and the conduct is only likely to face challenges in the qualified immunity context. See Camreta v. Greene,
2. Clearly Established Rights, in the Qualifíed Immunity Analysis.
In evaluating whether the right was clearly established, a district court considers whether the right was sufficiently clear that a reasonable government employee in the defendant’s shoes would understand that what he or she violated that right. See Casey v. W. Las Vegas Indep. Sch. Dist.,
The Supreme Court has clarified that the clearly established prong of the qualified immunity test is a very high burden for the plaintiff: “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct; the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd,
The Tenth Circuit held in Kerns v. Bader that,, although “a case on point isn’t required if the impropriety of the defendant’s conduct is clear from existing case law,” the law is not clearly established where “a distinction might make a constitutional difference.” Kerns v. Bader,
RELEVANT LAW REGARDING EXCESSIVE FORCE
When an officer moves for qualified immunity on an excessive force claim, “a plaintiff is required to show that the force used was impermissible (a constitutional violation) and that objectively reasonable 'officers could not have thought the force constitutionally permissible' (violates clearly established law).” Cortez v. McCauley,
1. Relevant Factors in Determining Whether Officers’ Actions Were Objectively Reasonable in the Qualifted Immunity Context.
The Tenth Circuit has provided lists of non-exclusive factors that courts consider when determining whether force was objectively reasonable.
These include (1) whether the officers ordered the suspect to drop his weapon, and the suspect’s compliance with police commands; .(2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions' of the suspect.
Estate of Larsen ex. rel Sturdivan v. Murr,
Reasonableness is evaluated under a totality' of the circumstances approach which requires that we consider the following 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.
Case law need not establish that. the exact police procedure at issue is unreasonable for a district court to conclude that it violated the Fourth Amendment. In Weigel v. Broad, two police officers accidentally caused the death of a suspect by using excessive force in arresting and handcuffing him. The suspect was non-cooperative, disobeying the officers’ commands and attempting to flee. See
The Tenth Circuit held that the district court should not have granted summary judgment for the officers on qualified immunity grounds. It reasoned that whether the officers’ actions were reasonable was a jury question, because there was evidence, that a reasonable officer would have known that:' (i) the pressure created a risk of asphyxiation; and (ii) the pressure was unnecessary to restrain the suspect. See
In determining whether the law was clearly established, the district court in Weigel v. Broad held that the law was not clearly established, because the restraint which the officers used was different from restraints that the Tenth Circuit had previously held unreasonable. See
Similarly, the Tenth Circuit has made clear that, although officers may use force to apprehend a suspect, the level of force they use must be necessary to accomplish' their objectives. See Buck v. City of Albuquerque,
Regarding whether the law was clearly established, the Tenth Circuit stated that “an officer’s violation of the Graham reasonableness test is a violation of clearly established law if there are no substantial grounds for a reasonable officer to conclude that there was legitimate justification for acting as she did.” Buck v. City of Albuquerque,
Courts have specifically addressed whether groin strikes are unreasonable. For example, in Johnson v. District of Columbia,
2. Least- or Less-forceful Alternatives in Excessive-Force Cases,
“To avoid a ‘Monday morning quarterback’ approach, the Fourth Amendment does not require the use of the least, or even a less, forceful or intrusive alternative to effect custody, so long as the use of force is reasonable under Graham v. Connor.” James v. Chavez,
In Michigan Department of State Police v. Sitz,
was not meant to transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques ■should be employed to deal with a serious public danger. -Experts in police science might disagree over which of -several methods of apprehending drunken drivers is preferable as an ideal. But for purposes of Fourth Amendment analysis, the choice among such reasonable alternatives remains with government officials-who have a unique understanding of, and a responsibility for, limited public resources, including a finite number of police .officers.
In United States v. Sokolow,
a creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of police might have been accomplished. But “[t]he fact that the protection of the public might, in the abstract, have been accomplished by less intrusive means does not, by itself, render the search unreasonable.”
In Marquez v. City of Albuquerque,
As the district court correctly noted, the Fourth Amendment “do[es] not require [police] to use the least intrusive means in the course of a detention, only reasonable ones.” United States v. Melendez-Garcia,28 F.3d 1046 , 1052 (10th Cir.1994). Similarly, “violations of state law and police procedure generally do not give rise to a 1983 claim” for excessive force. Romero v. Bd. of County Comm’rs,60 F.3d 702 , 705 (10th Cir.1995); see also Wilson v. Meeks, 52 F.3d 1547, 1554 (10th Cir.1995)(holding that .“violation of a police department regulation- is- insufficient for liability under seetion 1983” for excessive foree)[, abrogated on other grounds by Saucier v. Katz,533 U.S. at 205 ,121 S.Ct. 2151 ]. Both of these principles of pm- Fourth Amendment jurisprudence stem from the proper perspective from which to evaluate the conduct of a police officer— that “of a reasonable officer on the
scene, acknowledging that the officer may be forced to make split-second judgments in certain difficult circumstances.” Olsen [v. Layton Hills Mall], 312 F.3d [1304,] 1314 [(10th Cir.2002)]. Together, they prevent the courts from engaging in “unrealistic second guessing of police officer’s decisions.” [United States v.] Melendez-Garcia, 28 F.3d at 1052 .
Here, the only issue before the jury was whether Lehocky acted as a “reasonable officer” when he ordered his police dog to apprehend Marquez. In making this determination, the issues of whether Lehocky used the minimum amount of force to apprehend Marquez and whether Lehocky violated . some “well established police procedure” are only tangentially related. This is because even if it found Lehocky used more than the minimum amount of force necessary and violated police procedure, the jury could nonetheless find he acted reasonably. [United States v.] Melendez-Garcia,28 F.3d at 1052 ; Romero [v. Bd. of Cnty. Comm’rs,60 F.3d at 705 ].
Marquez v. City of Albuquerque,
In United States v. Melendez-Garcia, the Tenth Circuit stated: “We must avoid unrealistic second guessing of police officers’ decisions in this regard and thus do not require them to use the lea'st intrusive means in the course of a detention, only reasonable ones.”
“Thus, the clearly established law in the Tenth Circuit holds that the Fourth Amendment does not require an officer to use the least or a less forceful alternative.” Jonas v. Bd. of Comm’rs,
ANALYSIS
The parties dispute whether Padilla struck Martin in the groin and whether Padilla’s actions were necessary to take Martin into custody. Because a material fact remains in dispute, the Court cannot properly grant summary judgment. Additionally, reading the facts in the light most favorable to Martin, the law was clearly established that striking a non-violent, although uncooperative, misdemeanant in the groin when he did not attempt to flee constitutes an excessive use of force. Consequently, the Court cannot properly grant summary judgment and denies Padilla’s Motion in whole.
I. A MATERIAL DISPUTE EXISTS, SO THE COURT CANNOT CONCLUDE THAT PADILLA'S ACTIONS WERE REASONABLE AS A MATTER OF LAW.
There is a material issue of disputed fact whether Padilla used excessive force in arresting Martin. Under the Fourth Amendment, Martin had a right to be free from the excessive use of force. See Graham v. Connor,
Before the jury can determine whether Padilla’s use of force was reasonable, however, it must determine whether Padilla struck Martin in the groin. A knee strike to the thigh might be reasonable, while a strike to the groin could be unreasonable.
Moreover, the question whether Padilla’s use of force was unreasonable also presents a question of fact for the jury. See Draeger v. Grand Central, Inc.,
Knee strikes to other parts of a suspect’s body are inherently dangerous, are intended to inflict severe pain, and are “capable of injuring an arrestee.” Myser v. Spokane Cnty.,
Second, viewing the facts in the light most favorable to Martin, a reasonable officer in Padilla’s situation would know that the force was unnecessary to restrain Martin. The Tenth Circuit consults three factors to determine an action’s reasonableness: -•' (i) the crime’s severity; (ii) whether the suspect poses an immediate safety threat; and (iii) whether the suspect is actively resisting arrest or attempting to flee. See Weigel v. Broad,
The record contains no evidence that Martin presented an imminent danger to Padilla or others that justified the use of extreme force. Although Martin was’ driving after he consumed alcohol, the Tenth Circuit has concluded that a suspect who was driving wildly on the wrong side of the road while attempting to escape law enforcement did not pose an imminent threat to other motorists that -justified the officer’s use of force. See Cordova v. Aragon,
Notably, Padilla did not inform Martin that he was under arrest before pushing him up against the truck and administering a knee strike, revealing that Padilla’s strike could have been unnecessary. See Casey v. City of Federal Heights,
This case is distinct from Mecham v. Frazier,
Additionally, a reasonable jury might find that Padilla’s action of pushing Martin face-first into the ground'was also unnecessary. Where a suspect no longer poses a threat to the officer and does not resist his authority, violent force is unreasonable. See Buck v. City of Albuquerque,
Finally, the government’s interests do not greatly outweigh .Martin’s'‘Fourth Amendment interests. Although the government has an interest in preventing drunk drivers from staying on the road, this interest does not outweigh Martin’s interest in being free from excessive use of force, especially when Padilla had little evidence to show that Martin was intoxicated. This case is different from Johnson v. District of Columbia, where the government had an interest in apprehending an armed suspect and' protecting the public from possible harm. See
The Court has noted the importance of allowing juries to make factual findings. “This practice furthers the perception of justice that our-society has of the judicial system,” Dorato v. Smith,
For these factual issues, the question should be presented — in open court — -to a panel of jurors, ordinary citizens who can make the important factual determination. See Dorato v. Smith,
II. THE LAW WAS CLEARLY ESTABLISHED AT THE TIME THAT PADILLA ARRESTED MARTIN.
As the Tenth Circuit stated in Weigel v. Broad, “our analysis in this case of the constitutionality” of,Padilla’s force does not require a “court decision with identical facts to establish clearly that it is unreasonable to use” such force when the force is unnecessary to restrain a suspect to protect the public.
The law is clear that the level of force officers use must be necessary to accomplish the their objectives. See Graham v. Connor,
For minor offenses, “permissible force includes physical restraint, use of handcuffs, and pushing into ' walls.” Brown v. City of Huntsville, Ala.,
Moreover, a reasonable jury could find that Martin presented no threat of violence. A reasonable jury could find that he never resisted arrest because Padilla never gave him the chance; Padilla pushed and struck Martin without informing him that he was under arrest. When force is not necessary to advance governmental interests, the force is unreasonable. See Cortez v. McCauley,
In sum, a reasonable jury could conclude that Padilla struck Martin and pushed him face-first into the ground, even though Martin posed no threat of serious physical harm to Padilla or others,that would warrant the force used. “Considering that under [Martin’s] version of events, each of the Graham factors lines up in his favor/’ the law is clearly established that Padilla could not use this level of force. Fogarty v. Gallegos,
IT IS ORDERED that Defendant Padilla’s Motion for Summary Judgment Based on Qualified Immunity, filed April 10, 2015 (Doc, 25), is denied.
. The Court issues this Amended Memorandum Opinion and Order to. correct- a typographical error on page 20.. The Court replaces the word "now” with "not,” Specifically, the -sentence now reads: "If he had found that job tedious or unfulfilling, we might not have gotten some of the most beautiful paintings' from the Italian Renaissance, including The Virgin and Child Enthroned with Angels (circa 1306-1310).” That sentence and this footnote are the only changes to the opinion. The changes do not alter the Court’s previous ruling.
. ’Padilla argues that Martin's "self-serving interpretation of the video does not create a material dispute of fact” , and that the Court should "view the facts in the light depicted by the videotape.” Response -at 3. The United States District Court for the District of New Mexico’s local rules of civil procedure provide:
The Response must contain a concise statement of the material facts cited by the mov-ant as to which the non-movant contends a genuine issue does exist. Each fact in dispute must be numbered, must refer with ’ particularity to those portions of the record upon which the non-movant relies, and must state the number of the movant’s fact that is disputed. All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.
D.N.M.L.R-Civ. 56.1(b). Padilla’s assertion does not specifically controvert Martin’s fac- . tual assertion. See D.N.M.L.R-Civ. 56.1(b). Moreover, the Court's review of the video evidence substantiates Martin’s assertions. See Lapel Camera Videotape (Padilla) filed April 10, 2015 (Doc. 25). Accordingly, the Court deems Martin's factual assertion undisputed.
. The parties dispute how the altercation arose. Padilla asserts that he attempted to place Martin in handcuffs. See Motion ¶ 7, at 3. Martin asserts that Padilla assaulted him before attempting to place him in handcuffs. See Response ¶ 1, at 3. He further states that Padilla "never said anything relating to handcuffs prior to attacking” him. Response ¶ 1, at 3. The Court has reviewed the evidence and determined that the video substantiates Padilla’s factual assertion that he was attempting to arrest Martin, but it does not show that Padilla attempted to place Martin in handcuffs before he pushed him against the truck. Accordingly, the Court’deems it'undisputed that Padilla attempted to arrest Martin when the physical dispute arose. See Scott v. Harris,
. Padilla argues that Martin’s "self-serving interpretation of the video does not create a material dispute of fact” and that' the Court should "view the facts, in the light depicted by the videotape.” Response at 3. Padilla’s assertion does not specifically controvert Martin’s factual assertion. D.N.M.LR-Civ. 56.1(b). Moreover, the Court’s review of the video evidence reveals that Padilla. pushed Martin up against side of the. vehicle. See Lapel Camera Videotape at 2:2530.
. Martin does not dispute that he uttered this phrase, but he clarifies that he did not use any profanity until after "Padilla attacked him.” Response U 2, at 3.
. Padilla argues that Martin’s "self-serving interpretation of the video does not create a material dispute of fact" and that the Court should “view the facts in the light depicted by the videotape.” Response at 3. Padilla’s assertion does not specifically controvert Martin's factual assertion. See D.N.M.LR-Civ. 56.1(b). The Court’s review of the video evidence reveals that Martin made that statement. See Lapel Camera Videotape at 2:29-33 (Martin). . - .
. .Padilla argues that Martin’s "self-serving interpretation of the video does not. create a material dispute of fact” and that the Court should “view the facts in the light depicted by the videotape.” Response at 3. Padilla’s assertion does not specifically controvert Martin’s factual assertion. See D.N.M.LR-Civ. 56.1(b). The Court's review of the video evidence reveals that Padilla threw Martin to the ground, See Lapel Camera Videotape at 2:32-36 (Padilla).
. Padilla charged Martin with driving under the influence of intoxicating liquor or drugs, a misdemeanor offense in Martin’s case. See Albuquerque Police department DWI Offense Report (dated April 25, 2014), filed May 4, 2015 (Doc. 3 l-l)("Police Report”); NMSA § 66-8-102. He also charged Martin with violations of two traffic laws: (i) entering a stop or yield intersection • without stopping, see NMSA § 66-7-330;. and (ii) [?] disobedience to police, see NMSA § 66-7-4 (directing persons to comply with lawful, orders of police officers with authority to direct traffic),
. Padilla' does not dispute this factual asser- - tion. He instead states that "there is no evidence that [Martin’s injury] was caused by the Defendant.” The local rules require Padilla to "refer with particularity to those portions of the record” that dispute Martin’s factual assertion. D.N.M.LR-Civ. 56(b). Because Padilla does not specifically dispute this factual assertion or refer to the portions of the record that dispute the assertion, the Court deems it undisputed. See D.N.M.LR-Civ. 56(b).
. Because Padilla does not specifically dispute this factual assertion or refer to the portions of the record that dispute the assertion, the Court deems it undisputed. See D.N.M.LR-Civ. 56(b).
. Because Padilla does not specifically dispute this factual assertion or refer to the portions of the record that dispute the assertion, the Court deems it undisputed. See D.N.M.LR-Civ. 56(b).
. Because Padilla does not specifically dispute this factual assertion or refer to the portions of the record that dispute the assertion, ■ the Court deems it undisputed. D.N.M.LR-Civ. 56(b).
. The Court's citations to the transcript of the hearing refer to the court reporter’s original, unedited version. Any final transcript may contain slightly different page and/or line numbers.
. Although the Honorable William J. Brennan, Jr., Associate Justice of the Supreme Court of the United States, dissented in Celotex Corp. v. Catrett, this sentence is widely understood to be an accurate statement of the law. See 10A Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 2727, at 470 (3d ed. 1998)(‘‘Although the Court issued a five-to-four decision, the majority and dissent both agreed as to how the summary-judgment burden of proof operates; they disagreed as to how the standard was applied to the facts of the case.”).
. Rhoads v. Miller is an unpublished opinion, but the Court can rely on an unpublished opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A) ("Unpublished opinions are not precedential, but may be cited for their persuasive value.”). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, ... and we have generally determined that citation to unpublished opinions is not favored. However, if anunpublished opinion or order and judgment has persuasive value with respect to a material issue in a case and would assist the court in its disposition, we allow a citation to that decision.
United States v. Austin,
. The Court completed its 111th trial in Oc-tober2015.
. In Bivens v. Six Unknown Fed. Narcotics Agents,
. The Court clarified in Herrera v. Santa Fe Public Schools,
. In Kerns v. Bader, the Tenth Circuit reversed the Court’s decision that an officer was not entitled to qualified immunity, noting that the Court "analyzed both aspects of the quali-fled immunity test before agreeing” with {he plaintiff that the qualified immunity defense
Because we agree with Sheriff White on the latter (clearly established law) question, we reverse without addressing the former (constitutional violation) question. Arid we pursue this course because doing so allows us to avoid rendering a decision on important and contentious questions of constitutional law with the attendant needless (entirely avoidable) risk of reaching an improvident decision on these vital questions.
While the Court must faithfully follow the Tenth Circuit’s decisions and opinions, the Court is troubled by this statement and the recent trend of the Supreme Court’s hesitancy in § 1983 actions to address constitutional violations. A Reconstruction Congress, after the Civil War, passed § 1983 to provide a civil remedy for constitutional violations. See Mitchum v. Foster,407 U.S. 225 , 238-39,92 S.Ct. 2151 ,32 L.Ed.2d 705 (1972). In Mitchum v. Foster, the Supreme Court explained:
Section 1983 was originally § 1 of the Civil Rights Act of 1871 ... and was enacted for the express purpose of "enforc(ing) the Provisions of the Fourteenth Amendment.” ... The predecessor of § 1983 was thus an important part of the basic alteration in our federal system wrought in the Reconstruction era through federal legislation and constitutional amendment.
407 U.S. at 238-39 ,92 S.Ct. 2151 . Congress did not say it would remedy only violations of "clearly established” law, but that
[e]very person who; under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory of’the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, exception that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
42 U.S.C. § 1983 (emphasis added). The Supreme Court established the qualified immunity defense in Pierson v. Ray,386 U.S. 547 ,87 S.Ct. 1213 ,18 L.Ed.2d 288 (1967), and held that officials were not ha-ble for constitutional violation where they reasonably believed that their conduct was constitutional. See E. Clarke, Safford Unified Sch. Dist. No. 1 v. Redding: Why Qualified Immunity. is a Poor Fit' in Fourth Amendment School Search Cases, 24 B.Y.U. J. Pub.L. 313, 329 (2010). The Supreme Court first introduced the "cle’arly established” prong in reference to an officer’s good faith and held that a compensatory award would only be appropriate if an officer “acted with such an impermissible motivation or with such disregard of the [individual’s] clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.” Wood v. Strickland,420 U.S. 308 , 322,95 S.Ct. 992 ,43 L.Ed.2d 214 (1975). In Harlow v. Fitzgerald, when the Supreme Court ’moved to an objective test, the clearly-established prong became a part of the qualified immunity test. See457 U.S. at 818 ,102 S.Ct. 2727 ("We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or' constitutional rights.”). It seems ironic that the federal courts would restrict a congressionally mandated remedy for constitutional violations — presumably the rights of innocent people — and discourage casé law development on the civil side — and restrict case law development to motions to suppress, which reward only the guilty and is a judicially created, rather than legislatively created, remedy. Commentators have noted that, "[o]ver the past three decades, the Supreme Court has drastically limited' the availability of remedies for constitutional violations in” exclusionary rule litigation in a criminal case, habe-as corpus challenges, and 'civil litigation under § 1983. J. Marceau, The Fourth Amendment at a Threé-Way Stop, 62 Ala.L.Rev. 687, 687 (2011). Some commentators have also encouraged the courts to drop the suppression remedy and the legislature to provide more — not less — civil remedies for constitutional violations. See Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 U. Ill. L.Rev. 363, 39091 (1999)('‘Behavioral theory suggests that the exclusionary rule is not very effective in scaring police into behaving. ... These theories also suggest that a judicially administered damages regime ... would fare significantly better at changing behavior at an officer level.”); Hon. Malcolm R. Wilkey, Constitutional Alternatives to the Exclusionary Rule, 23 S. Tex. L.J. 531, 539 (1982)(criticizing the exclusionary rule and recommending alternatives). In Hudson v. Michigan, 547 U.S. 586 ,126 S.Ct. 2159 ,165 L.Ed.2d 56 (2006), the Supreme Court noted that civil remedies were a viable alternative to a motion to suppress when it held that the exclusionary rule was inapplicable to cases in which police officers violate the Fourth Amendment when they fail to knock and announce their presence before entering. See547 U.S. at 596-97 ,126 S.Ct. 2159 . Rather than being a poor or discouraged means of developing constitutional law, § 1983 seems the better and preferable alternative to a motion to suppress. It is interesting that the current Supreme Court and Tenth Circuit appear more willing to suppress evidence and let criminal defendants go free, than have police pay damages for violations of innocent citizens’ civil rights. It is odd that the Supreme Court has not adopted a clearly established prong for suppression claims; it seems strange to punish society for police violating unclear law in criminal cases, but protect municipalities from damages in § 1983 cases. Kerns v. Bd. of Comm’rs,888 F.Supp.2d 1176 , 1224 n. 36 (D.N.M.2012)(Browning, J.).
. In Kerns v. Board of Commissioners,
While the Court is, of course, obligated to follow faithfully the Supreme Court’s decisions and opinions, the Court has always been unenlightened and even troubled by Justice Elena Kagan's comments in Camreta v. Greene about "large” and “small” cases.131 S.Ct. at 2032 . As'a trial judge, the Court has tried assiduously to avoid thinking about or categorizing some cases as "large” and some as "small.” It usually is not mentally healthy for a judge to put all his or her energy into "large” cases and slight "small cases”; to the litigants, their case is the most important case on the Court’s docket, and it is usually wise for the judge to treat each case on which he or she is working — at that moment — as the most important case at that moment. Getting the decision "right,” i.e. getting the law and facts correct and accurate, is obviously important, but getting it right is only one-half of a judge’s task, particularly a trial judge’s job. The other half of dispensing justice is the appearance of justice — did the Court listen to the litigant’s arguments, wrestle with those arguments, and deal with them in an intellectually honest way. Americans are pretty good about accepting a judicial decision — even an adverse one — and cease obsessing over an issue, if they are convinced that an authority figure has dressed up, taken them seriously, listened patiently and politely, wrestled with the arguments, addressed them, and accurately stated the facts. The Court believes that, if it startslooking at some cases before it as “large” and some as "small,” it begins a slippery slope that does not accomplish both halves of the task of dispensing justice. The justice system depends so much oil the nation respecting and accepting the courts’ proceedings and decisions, because courts have very little “power” that do^s not ,depend on that acceptance. Thus, Justice Ka-gan’s comments are not only not self-defining, but they are disturbing.
If, perhaps, a "large” case is a Supreme Court case or one that comes from the East Coast or California, rather than . one in a district court in New Mexico, then it helps to look at what cases the Supreme Court has decided for the plaintiff. -. The three most recent qualified immunity cases, the Supreme Court dealt with are: (i) Reichle v. Howards, — U.S. —,132 S.Ct. 2088 ,182 L.Ed.2d 985 (2012); (ii) Filarksy v. Delia, — U.S. -,132 S.Ct. 1657 ,182 L.Ed.2d 662 (2012); and (iii) Messerschmidt v. Millender, - U.S. -,132 S.Ct. 1235 ,182 L.Ed.2d 47 (2012). In Reichle v. Howards, the Supreme Court determined that secret service agents were entitled to qualified immunity for arresting a protestor who touched the Vice President and held that it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation. See132 S.Ct. at 2092, 2097 . In Filarsky v. Delia, the Supreme Court held that a private individual that the government hires to do its work, an internal affairs review; is entitled to seek qualified immunity for Fourth and Fourteenth Amendment violations. See132 S.Ct. at 1660, 1668 . In Messerschmidt v. Millender, the Supreme Court held that police officers in Los Angeles, California were entitled to qualified immunity when they relied on an invalid warrant to search a home, because a reasonable officer would not have realized the error. See132 S.Ct. at 1241, 1250 . The Supreme Court has not denied qualified immunity since 2004 in Groh v. Ramirez,540 U.S. 551 ,124 S.Ct. 1284 ,157 L.Ed.2d 1068 (2004), where it held that an officer unreasonably relied on a deficient warrant. See540 U.S. at 565 ,124 S.Ct. 1284 . The Court does not think those presumably “large” cases (they are Supreme Court cases, after all) are any different — substantively, legally, or factually — than this case involving the search of a citizen’s home after someone shot down a police helicopter .and then detained that suspect for nine months until the United States realized that J. Kerns could not have shot down the helicopter.
On the flip side, treating large cases like they are large cases can create an appear-anee problem to the public and to the litigants — that only big cases deserve the Court’s attention. A trial judge can overwork a “large” case. It is better to treat even “large” cases like every other case; large cases and their litigants need to know and appreciate that they are not the only case on the court’s docket, and realize that the scarcity of judicial resources applies to them too.
. Myser v. Spokane Cnty.,