MEMORANDUM OPINION AND ORDER
This matter comes before the Court on cross motions for summary judgment filed by Plaintiff (Doc. 37) and Defendants (Doc. 39). For the reasons set forth below, both Plaintiffs and Defendants’ motions for summary judgment are GRANTED in part and DENIED in part.
Factual and Procedural Background
This is a 42 U.S.C. § 1983 case
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brought by Plaintiff Matthew St. John after he was
Officer McColley entered the crowded theater accompanied by three other Defendants and, after Mr. Zigmond pointed Mr. St. John out, asked Mr. St. John if he was carrying a firearm. Mr. St. John replied that he was, whereupon Officer McColley instructed Mr. St. John “to keep your hands where I can see them.” McColley Depo. 10:18-10:20. Officer McColley told Mr. St. John that he needed to accompany Defendants out of the theater. After Mr. St. John stood up, Officer McColley removed Mr. St. John from the Theater in an escort hold, 2 securing Mr. St. John’s left arm. According to Officer McColley, one of the other three Defendants may have secured Mr. St. John’s right arm as he was led out of the Theater. McColley Depo. 15:10-15:13.
Once outside, Officer McColley continued to restrain Mr. St. John’s left arm while Defendants removed the gun from Mr. St. John’s holster, removed the gun’s magazine and cleared a chambered bullet. Defendants then instructed Mr. St. John to place his hands on a nearby wall and proceeded to pat him down. No contraband or additional weapons were found on Mr. St. John and a police database cheek revealed that he possessed the gun lawfully-
Having taken the weapon, Officer McColley informed Mr. St. John that he could return to the movie if he left the gun in his truck. Mr. St. John agreed and led officers to his truck, where they placed the unloaded gun. Mr. St. John reloaded and recocked the weapon before leaving it in the truck and returning to the Theater for the remainder of the movie. Throughout the incident, which Mr. St. John estimates took approximately thirty minutes, St. John Depo. 118:22, Mr. St. John was, as Officer McColley recalls, “respectful and cooperative.” McColley Depo. 16:14.
In September 2008, Mr. St. John filed suit in New Mexico state court alleging Fourth Amendment violations, violations of the New Mexico Constitution, battery, and false arrest. He asserts his federal claims under 42 U.S.C. § 1983 and his state-law claims under the New Mexico Tort Claims Act. Based
inter alia
on 28 U.S.C. § 1331 and 28 U.S.C. § 1441, Defendants removed this matter in October 2008. Discovery commenced and, in May 2009, both parties filed summary-judgment motions averring that no genuine issues of material fact exist. Mr. St. John seeks an entry of judgment in his favor on all counts. Defendants assert both that Mr. St. John has no cognizable claims and that Defendants
Both motions are presently before the Court.
Standard of Review
Summary judgment is appropriate only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In addressing the parties’ motions, the Court must “view the evidence and draw reasonable inferences therefrom in the light most favorable to the non-moving party.”
Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Serv.,
Analysis
1. St. John’s Fourth Amendment Claims
Mr. St. John asserts claims arising from the Fourth Amendment’s prohibition on unreasonable searches and seizures.
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The Fourth Amendment applies to the states through the Fourteenth Amendment’s Due Process Clause,
see, e.g., Jones v. Hunt,
Because Mr. St. John’s Fourth Amendment claims and Defendants’ responses require the Court to begin by determining whether Mr. St. John has stated a viable cause of action, the Court will do so before turning to qualified immunity.
St. John’s Claim for Unreasonable Seizure
Mr. St. John contends that Defendants unreasonably seized him by “grabbing his arms and escorting him out of the movie theater.” (Doc. 1, Exhibit 1 at
1) the threatening presence of several officers; 2) the brandishing of a weapon by an officer; 3) some physical touching by an officer; 4) use of aggressive language or tone of voice indicating that compliance with an officer’s request is compulsory; 5) prolonged retention of a person’s personal effects ...; 6) a request to accompany the officer to the station; 7) interaction in a nonpublic place or a small, enclosed place; 8) and absence of other members of the public.
Fuerschbach v. Southwest Airlines Co.,
Applying the Hill factors, it is evident that Mr. St. John was seized. While watching a movie, Mr. St. John was approached by four armed officers who instructed him to stand up and accompany them out of the Theater. When Mr. St. John rose, Defendants restrained his arm(s) and led him outside, away from the crowd, where they continued to restrain him until they had removed his lawfully possessed weapon. At his deposition, Officer McColley testified that, had Mr. St. John asked Defendants to release him, he “wouldn’t [have felt] safe letting [Mr. St. John] go at that point.” 4 McColley Depo. 13:21-13:32. While outside, Defendants removed Mr. St. John’s wallet and handgun. They ran a check on the latter and only returned it at the end of their encounter. Because, from the time that Defendants approached Mr. St. John to the time when they physically released him, Mr. St. John reasonably believed that he was not free to leave, a seizure occurred.
But the inquiry does not end there. The Fourth Amendment does not protect individuals from all seizures — only unreasonable seizures.
See, e.g., United States v. Sharpe,
The undisputed facts establish that Mr. St. John’s seizure was unreasonable. Defendants lacked a justifiable suspicion that Mr. St. John had committed a crime, was committing a crime or was about to commit a crime. Indeed, Officer McColley conceded that he did not observe Mr. St. John committing any crimes and that he arrived at the theater with the suspicion that Mr. St. John was merely “showing a gun”, McColley Depo. 14:4, which is not illegal in the State of New Mexico.
See
N.M. Stat. § 30-7
et seq.
Nor was there any reason to believe that a crime was afoot. When they found him, Mr. St. John was peacefully sitting through the previews for his second movie of the day. Officers had no reason to believe that Mr. St. John had been, was, or would be involved in any criminal activity whatsoever.
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Candidly, as the Ninth Circuit noted in a somewhat similar case, one would expect someone engaged in shady business to act in a more stealthy fashion than Mr. St. John did here.
See Duran v. City of Douglas, Arizona,
Moreover, Mr. St. John’s lawful possession of a loaded firearm in a crowded place could not, by itself, create a reasonable suspicion sufficient to justify an investigatory detention. For example, in
United States v. Ubiles,
The Tenth Circuit has also dealt with this question. In
United States v. King,
In a state such as New Mexico, which permits persons to lawfully carry firearms, the government’s argument [that the officer’s investigatory detention of defendant was justified by concern for his safety and the safety of bystanders] would effectively eliminate Fourth Amendment protections for lawfully armed persons. Moreover, the government’s “reasonableness” standard would render toothless the additional requirement that the scope and duration of detention be carefully tailored to its underlying justification. For example, if a police officer’s safety could justify the detention of an otherwise lawfully armed person, the detention could last indefinitely because a lawfully armed person would perpetually present a threat to the safety of the officer.
King,
Defendants nonetheless seek to rely on
King
in asserting that, if Mr. St. John’s seizure was not justified by reasonable suspicion, it was at least permissible as part of Defendants’ performance of their role as community caretakers. Under the community caretaker exception, officers may seize an individual in order to “ensure the safety of the public and/or the individual.”
Id.
at 1560. Such stops are permissible when “articulable facts indicate the need to assure the safety of the public or the individual being detained.”
U.S. v. Luginbyhl,
Defendants’ reliance on King is misplaced. Though the King court ultimately found that King’s detention was non-investigatory and could, thus, be justified under the officer’s community caretaker function while he advised King of the hazardous conditions that his honking created, the King rationale does not apply here because Defendants had no legitimate reason to engage Mr. St. John in the first place. M(“In short, while the safety of police officers is no doubt an important government interest, it can only justify a Fourth Amendment intrusion into a person’s liberty so long as the officer is entitled to make a forcible stop.”) (emphasis added).
More broadly, Defendants’ actions are not protected by the community caretaker exception because they had no basis for believing that anyone’s safety was at risk. Defendants simply received a report that an individual was carrying a firearm in a location where individuals could lawfully carry firearms. They received no indication that Mr. St. John was behaving suspiciously or in a threatening manner. When Defendants arrived, they found Mr. St. John sitting peaceably in the Theater preparing to watch a movie. They had no basis for believing that Mr. St. John’s use of the weapon was likely to become criminal, cause a public disturbance or pose a threat to safety. Nor did anyone seem particularly alarmed by Mr. St. John’s weapon. Indeed, the record does not reveal that anyone — including the lone customer who spoke to Officer McColley about Mr. St. John’s gun — was even concerned enough to have left the Theater as a result.
In sum, Defendants had no reason for seizing Mr. St. John other than the fact that he was lawfully carrying a weapon in a public place. Because New Mexico law allows individuals to openly carry weapons in public — and Mr. St. John had done nothing to arouse suspicion, create tumult or endanger anyone’s well-being — -there
St. John’s Claim for Unreasonable Search
If, during the course of a valid investigatory detention, an officer has an articulable and reasonable suspicion that a suspect is armed and dangerous, the officer may conduct a limited protective search.
U.S. v. Davis,
As discussed above, Defendants’ detention of Mr. St. John was not a “valid investigatory detention.” Defendants had no reason to suspect that Mr. St. John was involved in, or was about to become involved in, any criminal activity. Nor did they have any reason to believe that Mr. St. John posed a safety threat. Accordingly, Defendants’ search of Mr. St. John was invalid.
Additionally, Defendants lacked any reasonable suspicion for believing that Mr. St. John was armed
and dangerous,
as required by Tenth Circuit jurisprudence.
See Davis,
Qualiñed Immunity
Defendants next assert that qualified immunity shields them from Mr. St. John’s Fourth Amendment claims. Qualified immunity protects government officials from civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald,
Courts generally follow a two-step procedure in considering qualified immunity defenses. First, they determine whether the plaintiffs allegations, if accepted as true, adequately allege a violation of a federal constitutional or statutory right.
See Albright v. Rodriguez,
As discussed above, Mr. St. John was seized and searched in violation of his Fourth Amendment rights. The question then becomes whether, at the time of the incident, Mr. St. John’s rights were clearly established. The Court finds that they were.
Relying on well-defined Supreme Court precedent, the Tenth Circuit and its sister courts have consistently held that officers may not seize or search an individual without a specific, legitimate reason.
See Terry,
The applicable law was equally clear in this case. Nothing in New Mexico law prohibited Mr. St. John from openly carrying a firearm in the Theater.
See
N.M. Stat. § 30-7
et seq.
Because both New Mexico law and the Fourth Amendment prohibition on unjustified seizure were clearly established, and a reasonable officer is presumed to know clearly established law,
see, e.g., Harlow,
2. St. John’s Battery Claim
New Mexico law does not clearly define the elements of tortious battery. Indeed, the committee that drafted the New Mexico Uniform Civil Jury Instructions noted this uncertainty in declining to issue uniform instructions for such claims. UJI 13-1624, NMRA Civ. (“The committee spent much time over a period of several months studying the matter of intentional torts.... It was finally concluded that there was insufficient New Mexico law on assault and battery to guide the committee on this subject....”). Grappling with this issue, some New Mexico courts have ap
More recently, New Mexico courts and the Tenth Circuit have begun relying on elements more in line with the Restatement (Second) of Torts.
See
Restatement (Second) of Torts §§ 18-19 (1965). Under this approach, “[a] battery occurs when an individual acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of contact and ... an offensive contact with the person of the other directly or indirectly results.”
Fuerschbach,
Defendants’ contact with Mr. St. John involved restraining at least one of his arms while leading him out of a crowded theater, restraining the same arm once outside and patting him down. Defendants did not handcuff Mr. St. John and did not perform more than a cursory pat down. Mr. St. John provided deposition testimony that his left shoulder was sore and that the escort hold was “uncomfortable”. St. John Depo at 103:19-104:14.
Whether Defendants’ actions would be offensive to a reasonable sense of personal dignity, and would thus constitute battery, is a question best left to a jury. Simply stated, a reasonable person — working with the limited factual record before the Court — may, but would not necessarily, find Defendants’ contact offensive to their sense of personal dignity. Additionally, a jury must determine whether Defendants are protected by having acted reasonably and in good faith.
See Mead v. O’Connor,
3. St. John’s False Arrest Claim
False arrest involves the unlawful arrest of a person.
Butler ex rel. Butler v. Rio Rancho Pub. Sch. Bd. of Educ.,
Conclusion
Mr. St. John’s motion for summary judgment is granted with regard to liability on Plaintiffs claims under the Fourth Amendment and New Mexico Constitution. Mr. St. John’s motion for summary judgment is denied with regard to his battery and false arrest claims.
Defendants’ motion for summary judgment is granted with regard to Mr. St. John’s false arrest claim, but is denied with regard to Mr. St. John’s Fourth Amendment, New Mexico constitutional, and battery claims. Defendants’ motion for summary judgment is also denied with regard to qualified immunity.
ORDER
A Memorandum Opinion having been entered this date, it is hereby ORDERED that the motion for summary judgment filed by Plaintiff (Doc. 37) be, and hereby is, GRANTED in part and DENIED in part. It is further ORDERED that the motion for summary judgment filed by Defendants (Doc. 39) be, and hereby is, GRANTED in part and DENIED in part.
Notes
. As discussed below, Plaintiff also alleges state-law claims under the New Mexico Tort Claims Act.
. One training guide for law enforcement officers describes the escort hold as a technique used to safely initiate physical contact with a subject. With one hand, the officer grips above the elbow of the subject’s dominant arm and, with the other hand, grips the subject’s wrist. The officer then pulls the subject’s hand and wrist toward the officer's center. The officer may then move the subject by stabilizing the subject’s elbow and pushing forward on the subject’s forearm and wrist. Wisconsin Department of Justice Law Enforcement Standards Board, Defensive and Arrest Tactics: A Training Guide for Law Enforcement Officers (March 2007).
. Mr. St. John also asserts claims under the New Mexico Constitution’s Fourth Amendment analog, Article II, Section 10. Because Mr. St. John does not ask that — and New Mexico law does not require — the New Mexico constitutional claims be considered separately from their federal counterparts, this Court will treat them in tandem, extending its holding on the federal claims to Mr. St. John’s state-based constitutional claims.
See State v. Ochoa,
. Though Officer McColley’s post-hoc acknowledgment that he would not have released Mr. St. John does not factor directly into the Court’s consideration, it is included here as indicative of the tenor of Defendants’ encounter with Mr. St. John.
. Defendants contend that Mr. St. John was about to commit a crime because, had he refused to comply with their request that he leave the premises, he would have been trespassing. If accepted, this argument would significantly erode Fourth Amendment protections. Because the Court finds no jurisprudential support for Defendants' novel contention, no further discussion of it is necessary.