Dotson et al v. Acord et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DAVID L. DOTSON, MEAGAN DOTSON, JERRY
GUM, DANA GUM, A ONE TOWING, JUAN ACOSTA,
DENISSE ACOSTA, MARIA ACOSTA,SCY-JHR JESUS
ACOTSA, DAVID ADAMS, JULIO ALBARADO, RON
and SHELLEY ALSBAUGH, FRANK AMADOR,
ANGEL ANAYA, DENNIS and JANET ANDERSON,
DUSTIN ARMIJO, HELENA ARMIJO, HONORABLE
CLAYTON ATWOOD (RET.), JOE DON AUTREY,
BABCOCK, ABIE and DELANEY BACA individually
and o.b.o. of their minor child A.B., DOREEN BACA,
ABIE BENAVIDES, DEWAYNE BEAGLES, PATRICIA
BEAGLES, VIRGIL BEAGLES, ANGEL BENAVIDEZ,
COONEY BENAVIDEZ, MARTH BENSON, JAMES
ARTHER BLANKENSHIP, J.R. BONESTEELL, LUCAS
BOWMAN, CHRIS BRAHS, CHRISTOPHER
BRANNAN, MATTHEW BRANNAN, BOB BRANNIN,
WILLIAM and DEETTA BRASWELL, HANNA BRAY,
WILLIAM BRAZFIELD, SUAN BREITHA, BRYCE
SANDOVAL, TODD BUDLONG, HENRY BURMANN,
AMY CALLAN, ALLISON CAMERON, DON
CAMERON, CLAYTON CANNON, JESSICA
CARRANZA, DAVID CARROL HONORABLE
FRANCIS CASES (RET.), DOUG CASH, DAYMON
CASTAGNETTO, TOBY LEONEL CHACON, JOHN
CHANEY, JAMES STUART CHAPMAN, ALEHANDRO
CHAVEZ, ALEX CHAVEZ, ANNA CHAVEZ, CARMEN
CHAVEZ, EVA CHAVEZ, KAROLYN CHAVEZ,
MICHELLE CHAVEZ, NADINE CHAVEZ, NANCY
CHAVEZ-BERG, TRINA CHAVIS, DEWEY
CHRISTIANSEN, NACONA CLINE, LARRY COLE,
MICHAEL COLLINS, FRANK COMBS, THOMAS A
COOK, BELULAH R. COOK, JIM COSTA, ALBERT
COSTALES, GINO COSTALES, B.W. COX, CROSS T.
CONSTRUCTION, KELLY CRUM, DAVID CRUZ, RAY
CUMBIE, DIAMON J, JOSEPH R. DAVILA LUCERITA
R. DAVILA, JIMMY DON DAVIS, KEVIN DAVIS, LEE
DELGADO, MARCOS DELGADO, JENNIFER
DICKERSON WILDA DILTS, JENNY RENIE
DOLEZAL, GAYL DOYL, GLEN DUGGINS, CALE
DURKIN, HOYT DUTTON, WADE ECKEL, TOM
EDWARDS, DANIEL ESQUIVEL, JOSE ESQUIVEL
MARIE FARR-LEE BEATRICE FERNANDEZ, LORI
FERNANDEZ, PAT FIERRO, STEPHANIE FINCH,
Case 1:25-cv-00509-SCY-JHR Document 66 Filed 03/19/26 Page 1 of 21

2
CHRISTOPHER FORD, SPENCER FOSS, EDWARD
FRATELLO, MORGAN GACO, DELIA GARCIA,
JENNIFER GARCIA, KENRIC GARCIA, PRISCILLA
GARCIA, DAVID E. GAYTON JR. WILLIAM GEDDES,
THOMAS GEORGE, GLENN GIBSON, BRIAN GIRON,
RUSSELL GIRON, CEASAR GONZALES, DIANA
GONZALES, MARY GONZALES, MELECIO
GONZALES, ALONZO GONZALEZ, SHELBI GORET,
FANCHER GOTESKY, MANNY GRADO, JOHN
GRADY, DANNY GRAYSON, JIMMY GREEN,
MICHELLE GREEN, SID GREEN, SHANNON DEVINE,
LACY GREENHAGEN, SARAH GREENHAGEN, RAY
GREENWOOD, BOB GREINER, RAYMOND GRIEGO,
MELISSA TORRES, PETER HADDAD, JAIME
HAGAN, CAREY HALL, KIMBERLY HAMADE, JAY
HAMILTON, CRYSTAL THOMPSON, ELIZABETH
HANDLEY, NICHOLAS HARDY, CAROL HARRIS,
JAMES HARRIS, LAURA HARRIS, DALE and LINDA
HENDERSON, TREG HERERRA, EDGAR
HERNANDEZ, ROBERT HIGNIGHT, MIKE and SUSAN
HITCHCOCK, RORY HOGAN and INEZ LEONTIV-
HOGAN, GAUDALUPE HOKE, GEORGE HOOD,
TRISTAN HOOD, DONNIE HUGHETT, GARRETT
JACOBS, JOHN JACOBS, MICHAEL JACOBS,
MANUEL JAQUEZ, RAYMOND JARAMILLO MARY
JENKINS, RANDALL JENKINS, JOANN JOHNSON,
PERRY JOHNSTON, STEVEN JOJOLA, CHAD JONES,
KELLI MACK JONES, VANESSA JONES, WANITA
JONES, WILTON JONES, MIKE KEENAN, TRACY
KELLY, JACQUELINE KENNERLY, AARON KENT,
ALISHA KETTLE, FRANK and CENAIDA KEY,
DEEANN KIEHNE, LEE KIEHNE, KIERRA C.
SHAUER, CHRIS KINNEY, FLORENCE WARD,
CATHY KNOWLES, ASHLEY KUEHLENZ, CHRIS
LABORIEL, JESS LANDERS, REGINA LANE,
VERNON LANE, ANGELO LIEJA, LUCIANO
LESPERANCE, SCOTT LEWIS, LARRY LEYBA,
SANTIAGO LEYBA, BRYAN LIEBOWITZ, SHELLY
LINDSAY, TODD LINDSAY, WYATT LINDSAY,
LARRY GUITERREZ, LITTLE ANITAS, LOG STICK
AND STEEL, DAVID LOPEZ, RICK LOPEZ, MIKE
LOUGH, MONICA LUCERO, PATRICIA LUCERO,
PRISCILLA LUCERO, REBECCA LUCERO, EDGAR
LUJAN, SEAN LYNCH, ERNEST MALOUFF,
CHARLES MANDEVILLE, MARC MCKINLEY,
MARCELLA SANDOVAL, CYNTHIA MARTLOCK,
Case 1:25-cv-00509-SCY-JHR Document 66 Filed 03/19/26 Page 2 of 21

3
FRANKIE J. MASTERSON, MICHAEL MCDANIEL,
WALTER and BARBARA MCCLAIN, JAMES VERNON
MCLEMORE, VIRGINIA THERESA MCLEMORE,
AARON MILLER, JAMES and THERESA MISHOE,
SHANIA MISHOE, MJ CONCRETE, RAYNA
MOLINERO, CLIFTON MONTGOMERY, DAVID and
LILY MONTOYA, LESLIE MONTOYA, MARK
MONTOYA, AURORITA MOORE, WILLIAM MOORE,
GILBERT MORALES, LEON MOUNYO, ANDREW
MUGGLESTONE, MARYELLA MUGGLESTONE,
LAWRENCE SCHNEIDER, KEVIN LYNAUGH, JOY
NELSON, CARI OBUCHON, DEENA OREILLY, RUSS
ORR, WADE ORR, TANYA ORTEGA, MINDI ORUM,
JOSEPH RICHARD PADILLA, GRETTA ANN
PADILLA, ROBERT PADILLA, CHAD BUCKLAND,
MARGARET SANCHEZ PATTERSON, JUSTIN
PAYNE, CYNTHIA PEARSE, BERNICE PEREA,
DENNY PETERSON, GERI PETERSON, MARY
PHILLIPS, ALICIA M. PHILPITT, PRISCILLA PINO,
VICTORIA PINO, ED PINSON, HERB PLUEMER,
GREGORY PLUEMER, STEPHEN PLUEMER,
LOUANNE CUNICO GALLEGOS, DYLAN PYLE,
DENNIS PYLE, ALEXANDER RACCA RAELYNN
RAEL ISAAC VALERIO, JAMES ARLEN REIDEL,
MICHAEL RAQUEJO, ANNETTE RICHARDSON.
DAVID RICKS IVONNE RILEY, JOHN RILEY,
THERESA RIVERA, CLINTON ROBERTS, MICHELLE
ROBERTS, SARAH ROBINSON, NOEL ROGERS,
JAMES ROLSTON, ASHLEY ROMERO, GERARDO
ROMERO, JEREMY ROMERO, MARIA ROMERO,
MISTY ROMERO, STACIE ROMERO, CHRISTINA
ROSADO, WILLIAM RUBI, CHRIS RUSSO, SALEM
SAGER, CESAR SALAS, DALE SALAZAR, LEROY’S
EXCAVATING, SONIA SALAZAR, JOEE SANCHEZ,
RAUL SANDOVAL, SANTA RITA RANCHES POA,
JOSEPH CATES, EMORY SEDILLO, ROBERT SERNA,
MIKE SHERBRING, CRAIG SICHLER, JOHN SILVA,
SHAYLA SILVA, ERIC SKRIVSETH, KEITH SLIGHT,
KORY SLIGHT, DEREK SMITH, EVAN SMITH,
FORREST SMITH, KENNETH SMITH, AUSTIN
SMYTHE, AMANDA SMYTHE, SOCORRO
DEVELOPMENT, SOCORRO PLASTICS, ERIC
SOTELO, SPRING CANYON RANCH, DAVID
STANDEFER, SEAN STANFORD, BOB STANLEY,
HARLEY STEELE, HARLAN STEELE, TABITHA
STONER, MATT STURGEON, T&T TRAILERS,
Case 1:25-cv-00509-SCY-JHR Document 66 Filed 03/19/26 Page 3 of 21

4
ELLIOT TAHER, TY-LYNN TAPIA, JJ’S PREMIER
TIRES AND SERVICE, TARA TAYLOR, JOHN
TEBBETTS, LANCE THIESSEN, CANDY TORRES,
DAVID TORRES, DEBRA TRUJILLO, JANE TURNER,
ELLA TWARY, SHAY UNDERWOOD, TINA
VALENZUELA, CELIA VALLEJOS, MICHAEL
VALLEJOS, JOSHUA VALLEJOS, VICTOR
VALLEJOS, NORMA MARIE VALLES, ERIC
VARGAS, JUAN PABLO VERGARA, EDUARDO
VEGARA, VICTORY AUTOMOTIVE JIM WALLACE,
AMANDA WELDY, JOSH WHITLOW, DAVE
WILGUESS, JC WILLIAMS, LONNIE WISDOM,
SAMANTHA WOODS, BRIAN ZAMARCHI, and IAN
ZASTROW,
Plaintiffs,
v. 	Civ. No. 25-509 SCY/JHR
JOSEPH ACORD, individually, and JOHN DOE 1,
individually,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING QUALIFIED IMMUNITY
Plaintiffs Jerry and Dana Gum (“the Gums”) assert that Defendant Joseph Acord (a New
Mexico Game and Fish Officer) illegally entered their property en route to knocking on their
front door to ask them questions about Plaintiff David Dotson, who Officer Acord wanted to
contact in connection with an investigation. More specifically, the Gums argue that Officer
Acord had no legal justification for passing the locked, gated fence surrounding their property as
a means to approach their front door. Drawing all reasonable factual inferences in the Gums’
favor, the Court finds that a jury could conclude Officer Acord violated the Gums’ Fourth
Amendment rights when he entered their property. However, because clearly established law did
not exist at the time of the entry to place Officer Accord on notice that the alleged conduct would
Case 1:25-cv-00509-SCY-JHR Document 66 Filed 03/19/26 Page 4 of 21

5
violate the Gums’ Fourth Amendment rights, Officer Accord is protected by qualified immunity.
Accordingly, the Court dismisses the Gums’ claims against Officer Accord.
STANDARD OF REVIEW
I. 	Summary Judgment
“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). A dispute about a material fact is “genuine” if the evidence is such that a
reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). In other words, a dispute is genuine “if there is sufficient evidence on
each side so that a rational trier of fact could resolve the issue either way,” and it is material “if
under the substantive law it is essential to the proper disposition of the claim.” Becker v.
Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013) (internal quotation marks omitted). In reviewing
a motion for summary judgment, the Court views the evidence and all reasonable inferences
therefrom in the light most favorable to the non-moving party. S.E.C. v. Thompson, 732 F.3d
1151, 1156-57 (10th Cir. 2013) (internal quotation marks omitted). Initially, the party seeking
summary judgment has the burden of showing that there is no genuine dispute as to any material
fact. See Shapolia v. Los Alamos Nat’l Lab., 992 F.2d 1033, 1036 (10th Cir. 1993). Once the
moving party meets its burden, the non-moving party must show that genuine issues remain for
trial. Id.
II. 	Qualified Immunity
Qualified immunity protects public officials from liability “insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). When an individual defendant raises the qualified
Case 1:25-cv-00509-SCY-JHR Document 66 Filed 03/19/26 Page 5 of 21

6
immunity defense on summary judgment, the burden shifts to the plaintiff to meet a strict two-
part test. Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). The plaintiff must show that
1) the officer violated a constitutional or statutory right and 2) the right was clearly established
when the alleged violation occurred. Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir.
2002); Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). A court may address these
prongs in either order, Pearson, 555 U.S. at 236, but a plaintiff must satisfy both to avoid
qualified immunity, Olsen, 312 F.3d at 1304.
In determining whether an officer is entitled to qualified immunity, the relevant question
is not whether the officer made a mistake or whether, in retrospect, the officer should have acted
differently. “[I]t is inevitable that law enforcement officials will in some cases reasonably but
mistakenly conclude that probable cause is present, and we have indicated that in such cases
those officials—like other officials who act in ways they reasonably believe to be lawful—
should not be held personally liable.” Anderson v. Creighton, 483 U.S. 635, 641 (1987). Instead,
the relevant inquiry is whether an officer had clear notice that the specific conduct in which the
officer engaged was illegal.
A right is clearly established if “[t]he contours of the right [are] sufficiently clear that a
reasonable official would understand that what he is doing violates that right.” Anderson, 483
U.S. at 640. The action at issue need not have been previously declared unlawful, but its
unlawfulness must be evident in light of preexisting law. Beedle v. Wilson, 422 F.3d 1059, 1069
(10th Cir. 2005). Except for egregious circumstances in which every reasonable officer would
understand the conduct at issue to be unreasonable, unlawfulness is generally demonstrated
“when there is controlling authority on point or when the clearly established weight of authority
from other courts supports plaintiff’s interpretation of the law.” Id. at 1069-70 (internal quotation
Case 1:25-cv-00509-SCY-JHR Document 66 Filed 03/19/26 Page 6 of 21

7
marks omitted). “A prior case need not have identical facts,” Patel v. Hall, 849 F.3d 970, 980
(10th Cir. 2017), but the precedent must make it clear “to every reasonable officer . . . that what
he is doing violates that right,” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (internal quotation marks
omitted). The plaintiff bears the burden of identifying “a controlling case or robust consensus of
cases” where an officer acting “under similar circumstances” to those faced by the defendants
was found to have acted unlawfully. D.C. v. Wesby, 538 U.S. 48, 65 (2018); Quinn v. Young, 780
F.3d 998, 1013 (10th Cir. 2015). Furthermore, the cases so cited must clearly establish that “the
scope of the right encompasses the facts presented.” Quinn, 780 F.3d at 1012 (internal quotation
marks omitted; emphasis removed). “[T]he defense of qualified immunity gives public officials
the benefit of legal doubts.” Donovan v. City of Milwaukee, 17 F.3d 944, 951 (7th Cir. 1994)
(internal quotation marks omitted). Thus, qualified immunity provides “ample room for mistaken
judgments . . . .” Malley v. Briggs, 475 U.S. 335, 314, 343 (1986).
UNDISPUTED MATERIAL FACTS
The parties dispute how Officer Acord entered the Gums’ property and whether the
locked fence that surrounded the Gums’ property had a gap in it that Officer Acord could have
squeezed through. Otherwise, the facts are not in dispute. Indeed, Officer Acord’s approach to
the Gums’ front door after passing the gate, his interaction with the Gums while at the front door,
and his departure from the Gums’ front door are captured on video.
The undisputed facts are as follows. See Doc. 42 at 12-14; Doc. 47 at 9-10. Shortly before
7:00 p.m. on January 11, 2025, Officer Joseph Acord and Officer Jake Morales arrived in San
Acacia, NM for the purpose of attempting to speak with David Dotson about an investigation
into the killing of an oryx that occurred earlier that day. Undisputed Material Fact (“UMF”) 1. At
that time, it was already dark. Def’s Exhs. B and C. Officer Acord had an address for Mr.
Case 1:25-cv-00509-SCY-JHR Document 66 Filed 03/19/26 Page 7 of 21

8
Dotson, but the house belonging to that address was difficult to locate. UMF 2. Officer Acord
believed that the Gums’ property might have been where Mr. Dotson could be located. UMF 2.
Officer Acord approached the Gums’ residence, which was surrounded by a fence with a gate.
UMF 3. 1 After going past the gate, Officer Acord approached the front door of the Gums’ house
and immediately rang the doorbell. UMF 4. Mr. Gum opened his door to speak with the Officers
at 7:02 p.m. UMF 5. Officer Acord and Mr. Gum had a conversation that lasted approximately
one minute. UMF 6. Officer Acord asked if Mr. Gum was Mr. Dotson, and Mr. Gum replied that
he was not. UMF 6. Officer Acord asked if Mr. Gum knew Mr. Dotson, and Mr. Gum replied, “I
do.” UMF 6. Officer Acord asked if he knew where Mr. Dotson lived, and Mr. Gum indicated
that he did not think David Dotson was home right now, but pointed to a structure on the
neighboring property and said, “See that big – there’s a big barn-dominum thing over there – he
lives in that.” UMF 6. Mr. Gum indicated that he was trying to read Office Acord’s uniform to
see who he was, at which point Officer Acord asserted that he was with New Mexico Game and
Fish. UMF 6. Officer Morales asked Mr. Gum if he knew whether Mr. Dotson lived anywhere
else or had any other property. UMF 6. Mr. Gum replied that he did not know but that he thought
1 The Gums purport to deny UMFs 1, 2, and 3 because they “lack sufficient information to either
admit or deny due to the fact that Defendants are thwarting discovery.” Doc. 47 at 9. A lack of
discovery may be a basis to file a request under Federal Rule of Civil Procedure 56(d), but it
does not comply with the requirement to cite record support for a factual dispute. D.N.M.LR-
Civ. 56.1(b). The Gums did not file any requests to delay briefing of this motion under Federal
Rule 56(d). Nor did the Gums present evidence contradicting the evidence Officer Acord
presented in support of UMFs 1-2 (background information not material to the current motion).
Regarding UMF 3, the Gums do not challenge Officer Acord’s assertion in UMF 3 that the
Gums’ residence was surrounded by a fence which had a gate. Instead, as set forth more fully
below, they challenge Officer Acord’s assertion in UMF 3 that, “The gate was partially ajar, and
Officer Acord and Officer Morales were able to move the gate aside enough to enter the property
and approach the front door . . . .” Doc. 42 at 12. The Court will address this challenge to the
extent it is based on Mr. Gum’s affidavit. To the extent the Gums challenge Officer Acord’s
asserted facts based on a lack of discovery, however, the Court finds they have waived that
challenge.
Case 1:25-cv-00509-SCY-JHR Document 66 Filed 03/19/26 Page 8 of 21

9
Mr. Dotson was currently in Los Lunas. UMF 6. Officer Acord thanked Mr. Gum for the
information, and then he and Officer Morales turned to begin exiting the property. UMF 6.
As the officers were leaving, Mr. Gum asked how they had gotten onto the property and
pointed to a gate on the fence line at the front of his property. UMF 7. Officer Acord answered
that they had squeezed through a small gap in the gate. UMF 7. The officers proceeded again to
exit the property the way they had entered it, and Officer Acord ended his body cam recording at
7:03 p.m., prior to exiting the property. UMF 7.
The officers were present on the property for a total of less than 3 minutes, were polite,
and there was no aggression. UMF 7. The officers did not re-enter the Gums’ property on
January 11, 2026, or at any other time. UMF 8. The officers did not employ the use of drug-
sniffing dogs or any other equipment that would allow them to observe anything beyond what
could be seen in plain view. UMF 9. The officers did not seize any property in the time spent on
the curtilage of the Gums’ property. UMF 10.
In their response, the Gums assert three statements of undisputed material facts, two of
which Officer Acord does not challenge with contradictory evidence. Doc. 47 at 10; Doc. 52 at
4-6. First, the Gums assert that, “The Gums had to let Officer Acord and Morales out of their
property by opening the gate.” Doc. 47 at 10 (the Gums’ additional material fact, hereinafter
referred to as PAF 2). Second, the Gums assert that, “The lapel videos do not capture Officer
Acord and Morales’ entry into my fenced and locked property or their exit.” Doc. 47 at 10 (PAF
3).2 The Court accepts these assertions as undisputed facts.
2 Officer Acord argues in reply that the Gums failed to provide any evidence to support their
contentions in PAFs 2 and 3. Doc. 52 at 5. Mr. Gum, however, filed an affidavit that supports
PAF 2. Doc. 47-1 at ¶ 6 (“I had to open my locked gate for Officer Acord and Morales to let
them exit my property.”). Regarding PAF 3, the record supports the assertion. The lapel videos
Officer Acord provided in support of his motion for summary judgment do not capture Officer
Case 1:25-cv-00509-SCY-JHR Document 66 Filed 03/19/26 Page 9 of 21

10
Having established which facts are undisputed, the Court turns to an analysis of the
disputed facts. Officer Acord claims that the gate surrounding the Gums’ property was “partially
ajar” such that he and his partner were able “to move the gate aside enough to enter the property
. . . .” UMF 3. In contrast, the Gums contend that the gate “was not partially open on January 11,
2025.” PAF 1. Further, apparently based on their contentions that the gate was not partially open
and that they had to let Officer Acord out of their property by opening the gate, the Gums argue
that Officer Acord “climbed over” the locked fence to enter the Gums’ curtilage. Doc. 47 at 9-
11.
In addition to the undisputed facts the parties present, the Court relies on the portion of
the video where Mr. Gum and Officer Acord discuss how the officers entered his property. After
Officer Acord informed Mr. Gum that they had entered the property by squeezing through a gap
in the gate, Mr. Gum explained that he just wanted to make sure he had everything closed
because of the dogs. Def’s Ex. B at 1:41-1:59.
In deciding what factual backdrop to use for its analysis, the Court must draw all
inferences in favor of the Gums, who are the nonmoving party. As the Gums point out, the video
exhibits (body cam footage) do not depict the officers’ entry or exit through the gate or other gap
in the fence. The video, therefore, does not establish how the officers entered or exited the
property or depict, if the officers squeezed through a gap in the gate, the size of any gap they
squeezed through. Drawing all reasonable inferences in favor of the Gums, however, the Court
concludes that any gap in the gate was too small to be considered a normal entry and egress
point.
Acord’s entry into or exit from the Gums property, which the parties agree was fenced and
locked.
Case 1:25-cv-00509-SCY-JHR Document 66 Filed 03/19/26 Page 10 of 21

11
First, it appears that any gap in the gate was not large enough for a person to enter
without moving the gate. See Doc. 42-1 ¶ 6 (sworn statement by Officer Acord stating: “The gate
was partially ajar, and Officer Morales and I were able to move the gate aside sufficiently to
enter the property.”). Second, even after moving the gate to widen the gap, when Mr. Gum asked
how the Officers were able to enter his property, Officer Acord replied that they “just kind of
squeezed through” the gap in the gate. Def’s Ex. B at 1:43-1:48. Drawing all inferences in
Plaintiffs’ favor, a gap in a gate that, even after widening by force, is only large enough to
squeeze through cannot be considered a normal entry and egress point. Third, after Mr. Gum
expressed concern about “other dogs,” neither Officer Morales nor Officer Acord informed Mr.
Gum that there was indeed a gap big enough for a dog to get through. Finally, after Officers
Morales and Acord initially walked away from the house to presumably exit the yard the same
way they entered it, Mr. Gum had to open his locked gate to let Officers Acord and Morales exit
his property. PAF ¶ 6. That Officers Acord and Morales would not simply exit the property the
same way they entered it indicates that squeezing through the gap in the gate was difficult
enough to justify having Mr. Gum leave his house, walk to the gate, and open the gate for
Officers Acord and Morales.3
3 Although the Court must draw all reasonable inferences in favor of the non-moving party, the
Court’s inferences must be based on evidence. Although the Gums present evidence that Mr.
Gum unlocked the gate to let out Officers Acord and Morales, Mr. Gum did not present evidence
that the Officers did not squeeze through a gap in the that the way the officers described. He
averred that the gate was “never ajar,” Doc. 47-1 ¶ 5, but a gate does not have to be “ajar” in
order to leave a gap between it and a fence. Nor does Mr. Gum have any evidence that anyone
saw the officers climb over his fence. Because the Gums present no evidence that the officers
climbed over their fence rather than squeezed through a gap in the gate, the Court does not infer
that the officers entered the property by climbing rather than squeezing.
Case 1:25-cv-00509-SCY-JHR Document 66 Filed 03/19/26 Page 11 of 21

12
DISCUSSION
I. 	Whether Officer Acord Violated the Gum’s Constitutional Rights
Officer Acord argues that, when he entered the Gums’ property, he was conducting a
voluntary knock-and-talk, as any member of the public might do. Doc. 42 at 16. Because he had
an implied license to enter the curtilage of the Gums’ property and knock on their door, he
argues his actions did not violate the Fourth Amendment. Doc. 42 at 16-20.4
The Tenth Circuit has held that “police officers do not violate the Fourth Amendment by
going to the front door of a home and knocking, seeking to speak with the occupants.
Specifically addressing an investigative knock-and-talk—during which police officers knock on
the door of a home seeking to speak with the occupants—this court has held that, as commonly
understood, a ‘knock and talk’ is a consensual encounter and therefore does not contravene the
Fourth Amendment, even absent reasonable suspicion.” United States v. Carloss, 818 F.3d 988,
992 (10th Cir. 2016) (cleaned up). That is, the “portion of the curtilage that is the normal route of
access for anyone visiting the premises is only a semi-private area on which police may set foot
if they restrict their movements to places visitors could be expected to go (e.g., walkways,
driveways, porches).” United States v. Shuck, 713 F.3d 563, 567 (10th Cir. 2013) (cleaned up).
As the Supreme Court has recognized, a homeowner provides “an invitation or license to attempt
an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds. This
implicit license typically permits the visitor to approach the home by the front path, knock
promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” Florida
v. Jardines, 569 U.S. 1, 8 (2013) (internal quotation marks and citations omitted). “Complying
4 Officer Acord assumes for purposes of his motion that he entered the curtilage of the Gums’
property when he passed through the Gums’ gate. Doc. 42 at 19. As such, case law involving
entry onto open fields, rather than entry onto curtilage, is inapplicable.
Case 1:25-cv-00509-SCY-JHR Document 66 Filed 03/19/26 Page 12 of 21

13
with the terms of that traditional invitation does not require fine-grained legal knowledge; it is
generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters.” Id.
In Jardines, the Supreme Court considered whether a police officer’s actions of using a
drug detection dog once he entered a property’s curtilage exceeded the scope of the
homeowner’s implied invitation and therefore violated the Fourth Amendment (it did). Id. at 8-9.
The Gums, however, do not challenge what Officer Acord did once he entered the curtilage of
their property. Instead, they argue that because the property Officer Acord entered was “fenced
and locked”, Officer Acord’s act of entering the property was not “objectively reasonable” and
therefore violated the Fourth Amendment. Doc. 47 at 13.
In essence, the Gums argue that, by surrounding their property with a locked fence, the
Gums revoked any implied license that might have otherwise existed for a person to enter their
property and knock on their front door. In United States v. Carloss, the Tenth Circuit considered
whether various no trespassing signs were sufficient to revoke the implied license to enter a
homeowner’s property and knock on the front door. 818 F.3d 988, 994-95 (10th Cir. 2016).
Specifically,
there was a “No Trespassing” sign on an approximately three-foot-high wooden
post located beside the driveway, on the side farthest from the house, and another
sign tacked to a tree in the side yard, both stating “Private Property No
Trespassing.” There was a sign, on a wooden pole in the front yard along the side
of the driveway closest to the house, and a sign on the front door of the house,
both stating “Posted Private Property Hunting, Fishing, Trapping or Trespassing
for Any Purpose Is Strictly Forbidden Violators Will Be Prosecuted.”
Id. at 990 (citation omitted). The Tenth Circuit first considered whether the various no-
trespassing signs were posted on the property’s curtilage or, instead, on an area of the property
that could be considered open fields. Id. at 995-96. This matters because the Fourth
Amendment’s protections do not apply to entry onto open fields. Id.; see also Jardines, 569 U.S.
at 6. Because it was the plaintiff’s “burden to establish what was included in the home’s
Case 1:25-cv-00509-SCY-JHR Document 66 Filed 03/19/26 Page 13 of 21

14
curtilage” and the plaintiff there failed to expressly claim that the signs were posted in the
home’s curtilage, the Tenth Circuit considered all no-trespassing signs, save the one posted on
the front door, to have been posted in open fields. Carloss, 818 F.3d at 995. Having done so, the
Tenth Circuit concluded: “Those signs would not have conveyed to an objective officer, or
member of the public, that he could not walk up to the porch and knock on the front door and
attempt to contact the occupants. It is well-established that ‘No Trespassing’ signs will not
prevent an officer from entering privately owned ‘open fields.’” Id.
The Tenth Circuit then turned to the sign on the door which said: “Posted Private
Property Hunting, Fishing, Trapping or Trespassing for Any Purpose Is Strictly Forbidden
Violators Will Be Prosecuted.” Id. at 996. This sign, the Tenth Circuit reasoned, was ambiguous
as it “referenced activities that ordinarily do not take place within a home or its curtilage—
hunting, fishing, and trapping.” Id. Thus, the Tenth Circuit reasoned, “on its face, this sign does
not appear to be directed to people who desire to approach and speak directly with the occupants
of the home in the ordinary course of societally accepted discourse.” Id. Knocking on a door to
talk with the homeowner is not hunting, fishing or trapping and, as set forth above, walking up to
a person’s front door is not trespassing because an implied license to do so exists. See id. at 996-
97.
The first part of Carloss has little application to the present case. Officer Acord makes no
open-fields argument and so the analysis of the open-fields doctrine is inapplicable. The second
part of the Carloss analysis, while factually distinct, does at least provide guidance as to how
clear a revocation of an implied license must be. Carloss stands for the proposition that, to be
legally cognizable, a homeowner’s revocation of a general implied license to enter the home’s
curtilage and knock on the door cannot be ambiguous.
Case 1:25-cv-00509-SCY-JHR Document 66 Filed 03/19/26 Page 14 of 21

15
Further surveying Tenth Circuit case law, Officer Acord cites United States v. Otero, 231
F. App’x 809 (10th Cir. 2007), for the proposition that officers may legally enter a property’s
curtilage through an unlocked gate. Doc. 42 at 17. Although the Tenth Circuit in Otero provided
little analysis, the Court agrees with Officer Acord that an unlocked gate does not send a clear
message to all girl-scouts, package deliverers, trick-or-treaters, or police officers that they have
no license to pass the gate and approach the front door. The presence of a fence with an unlocked
gate could simply mean that the homeowners wish to keep their dogs in rather than visitors out.
A locked gate, however, sends a different message. Otero, therefore, does little to advance
Officer Acord’s argument.
Not finding a Tenth Circuit case with similar facts, the Court turns to a decision from the
District of New Mexico. In Nidiffer v. Lovato, the Honorable Martha Vázquez adopted United
States Magistrate Judge Jennifer M. Rozzoni’s recommendation to find that a police officer
violated the Fourth Amendment when he jumped over a locked gate to initiate a knock and talk.
No. 22cv374 MV/JMR, 2024 WL 1172787, at *3 (D.N.M. Mar. 19, 2024). In her Proposed
Findings and Recommended Disposition, Judge Rozzoni concluded that the locked gate
separating the officers and the front door they wanted to reach “would have signaled to a
reasonable observer that they did not have an implied license to approach the home’s front door.”
2023 WL 5337129, at *7 (D.N.M. Aug. 18, 2023) (collecting district court opinions in support).
As Judge Rozzoni further observed, “Surely, the ‘Nation’s Girl Scouts and trick-or-treaters’
would not see a stranger’s locked fence as an invitation to climb over it to approach the door.”
Id.
In the present case, drawing all reasonable inferences in the Gums’ favor, their curtilage
was surrounded by a fence and locked gate. The locked gate had a small gap through which, if
Case 1:25-cv-00509-SCY-JHR Document 66 Filed 03/19/26 Page 15 of 21

16
forced farther open, a person could squeeze through. The Court concludes Girl Scouts, tricker-
treaters, and delivery persons presented with such a locked gate at night would conclude that any
implied license they otherwise might have had to approach the front door was revoked.
Similarly, such a locked gate was sufficient to revoke any implied license Officer Acord had to
perform a knock-and-talk. By squeezing through the gate, Officer Acord violated the Gums’
Fourth Amendment rights.
a. 	Whether The Law Was Clearly Established
Ultimately, however, the Gums’ claim meets the same fate as the plaintiffs’ claim in
Nidiffer. Although Judge Rozzoni and Judge Vázquez concluded that the officers in Nidiffer had
no implied license to climb over the gate to reach a homeowner’s front door, they also concluded
that no clearly established law existed to put the officers on notice that their conduct would be
unconstitutional. 2023 WL 5337129, at *8; 2024 WL 1172787, at *3.
On appeal, the Tenth Circuit affirmed in an unpublished decision. No. 24-2056, 2025 WL
719814 (10th Cir. Mar. 6, 2025). The Tenth Circuit recognized that both judges below concluded
that the officers violated the homeowners’ constitutional rights when they entered the curtilage
of their home. Id. at *2. But the Tenth Circuit did not review this conclusion. Instead, the Tenth
Circuit held, “the district court did not err in concluding the law was not clearly established when
the Officers acted, and on that basis, granting qualified immunity to the Officers.” Id. at *3. In so
holding, the Tenth Circuit observed that it is “the Owners’ burden to show the law was clearly
established” and that “‘[t]o show the law is clearly established, a plaintiff must normally point to
a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority
from other courts.’” Id. (quoting Jordan v. Jenkins, 73 F.4th 1162, 1168 (10th Cir. 2023). And,
“an unpublished decision cannot clearly establish the law.” (quoting Thompson v. Ragland, 23
F.4th 1252, 1260 n.3 (10th Cir. 2022)). Because the plaintiffs in Nidiffer failed to meet their
Case 1:25-cv-00509-SCY-JHR Document 66 Filed 03/19/26 Page 16 of 21

17
burden to cite clearly established law sufficient to notify the officers that their conduct was
unconstitutional, the officers were protected by qualified immunity.
So too here. Consider the cases on which the Gums rely. The Gums argue: “the U.S.
Supreme Court had decided all the issues present in this case in Katz v. United States, 389 U.S.
347, Florida v. Jardines, 569 U.S. 1, and United States v. Jones, 615 F. 3d 544 [5]
.” Doc. 47 at 15.
Neither Katz nor Jones, however, dealt with knock-and-talks.
Instead, Katz dealt with the use of an electronic surveillance device to intercept telephone
calls made from a public telephone booth. See Katz v. United States, 389 U.S. 347, 348-49
(1967). Although visual observance of the presence of a person in the public booth was
constitutional, spying on the content of the phone calls with electronic surveillance required a
warrant. Id. at 352-53. Katz is widely cited for the reasonable-expectation-of-privacy test it
articulated and which has become a core inquiry in Fourth Amendment cases. See e.g., Jardines,
569 U.S. at 10-11. As the Supreme Court recognized in Jardines, however, “[t]he Katz
reasonable-expectations test ‘has been added to, not substituted for,’ the traditional property-
based understanding of the Fourth Amendment, and so is unnecessary to consider when the
government gains evidence by physically intruding on constitutionally protected areas. Thus, we
need not decide whether the officers’ investigation of Jardines’ home violated his expectation of
privacy under Katz.” Jardines, 569 U.S.at 11.
Granted, to the extent the Gums argue that they had a reasonable expectation of privacy
in the curtilage of their home, they fairly cite Katz. But the question here is not whether a home’s
curtilage enjoys protection of the Fourth Amendment. The Supreme Court has long recognized
5 Plaintiffs cite the circuit court’s decision in United States v. Jones, 565 U.S. 400 (D.C. Cir.
2010), which was affirmed by the Supreme Court, 565 U.S. 400 (2012). The Court analyzes the
Supreme Court’s decision, which is the relevant governing precedent.
Case 1:25-cv-00509-SCY-JHR Document 66 Filed 03/19/26 Page 17 of 21

18
that it does. Jardines, 569 U.S. at 6 (“when it comes to the Fourth Amendment, the home is first
among equals” and the Supreme Court “regard[s] the area immediately surrounding and
associated with the home—what our cases call the curtilage—as part of the home itself for
Fourth Amendment purposes” (internal quotation marks omitted)). Instead, the question here is
whether a fence and locked gate surrounding curtilage is sufficient to revoke the implied license
to cross the curtilage en route to the door of the home. Katz does not speak to that question and
falls far short of providing Officer Acord notice that his actions here were unconstitutional.
United States v. Jones also fails to provide such notice for similar reasons. In Jones, the
Supreme Court held that the use of a GPS device to track a vehicle for a month constituted a
search and required a warrant. 565 U.S. 400, 404 (2012). As relevant here, the Supreme Court in
Jones recognized that violating a person’s reasonable expectation of privacy is not the only
means of violating a person’s Fourth Amendment rights. As this Court has previously explained:
[In Jones, t]he Supreme Court agreed that a person’s reasonable expectation of
privacy is a relevant consideration. [565 U.S. 400,] 406-11. But, the Supreme
Court held, it is not the only consideration. Id. In deciding whether a Fourth
Amendment violation occurred, the Supreme Court explained it first looks to
whether the agent’s installation of the tracking device constitutes a trespass. Id. If
the answer to this question is “yes,” a Fourth Amendment violation occurs,
suppression of the location information is necessary, and consideration of whether
the government also violated the suspect’s reasonable expectation of privacy is
unnecessary. Id.
In re Search Warrant Application for Location Info., 754 F. Supp. 3d 1099, 1131 (D.N.M.
2024). That is, in addition to the reasonable-expectation-of-privacy test the Supreme Court
recognized in Katz, Jones recognizes another avenue for a Fourth Amendment violation—
trespass. Because there is an implied license to walk up to a homeowner’s front door and knock
on the door, however, doing so does not constitute a trespass. And, although a person’s actions
while on the home’s curtilage can exceed the scope of this implied license (as did the police
officer’s actions in Jardines), Jones, a case that had nothing to do with curtilage or an implied
Case 1:25-cv-00509-SCY-JHR Document 66 Filed 03/19/26 Page 18 of 21

19
license to knock-and-talk, in no way reduced the scope of an implied license to knock-and-talk.
See Jardines, 569 U.S. at 10-11. The Gums’ citation to Jones falls far short of providing clearly
established law that Officer Acord’s actions were unconstitutional. Jones simply did not address
whether a fence and locked gate surrounding curtilage is sufficient to revoke an implied license
to knock-and-talk.
Finally, consider Plaintiffs’ third citation: Florida v. Jardines. The Supreme Court in
Jardines did discuss consensual knock-and-talk encounters. But it did so in order to expressly
recognize their constitutionality. 569 U.S. 1, 8 (2013). And although Jardines holds that
“introducing a trained police dog to explore the area around the home in hopes of discovering
incriminating evidence” exceeds the implied license to conduct a knock-and-talk, id. at 9, it says
nothing about whether a fence and locked gate surrounding curtilage is sufficient to revoke the
implied license to conduct a knock-and-talk.
In short, neither Katz, Jones, nor Jardines discusses gaps in a locked gate. As such, the
Court rejects the Gums’ attempt to define the right at issue at a high level of generality. Mullenix
v. Luna, 577 U.S. 7, 12 (2015) (“We have repeatedly told courts not to define clearly established
law at a high level of generality.” (cleaned up)). The Gums cite no case specific enough to defeat
qualified immunity with respect to the narrow question presented in this case.
Because it is a plaintiff’s burden to defeat qualified immunity, the lack of a cited case on
point is sufficient to grant summary judgment in the defendant’s favor. Cox v. Glanz, 800 F.3d
1231, 1247 (10th Cir. 2015); Quinn v. Young, 780 F.3d 998, 1013 (10th Cir. 2015) (“the plaintiff
bears the burden of citing to us what he thinks constitutes clearly established law”). In the
alternative, a court may, sua sponte and despite a plaintiff’s waiver, survey whether the clearly
established law would have put a reasonable officer on notice his conduct was unconstitutional.
Case 1:25-cv-00509-SCY-JHR Document 66 Filed 03/19/26 Page 19 of 21

20
Cox, 800 F.3d at 1247. But the Court is not aware of any published Tenth Circuit or Supreme
Court precedent which addresses the act of squeezing through a gap in a locked gate.
The Tenth Circuit in United States v. Shuck did address where an officer might walk en
route to knocking on the door of a residence. 713 F.3d at 568 (“the normal route of access, which
would be used by anyone visiting this [home]” defines the constitutional boundaries of the path
an officer may use to initiate a knock and talk). Shuck, however, did not address whether an
officer who squeezes through a gap in a gate en route to a residence’s front door exceeds the
bounds of his implied license to perform a knock-and-talk. Nor is the Court aware of published
Tenth Circuit precedent, Supreme Court precedent, or other clearly established law that would
put a police officer on clear notice that squeezing through a gap in a gate is not the normal route
of access which would be used by anyone visiting a home that is surrounded by a fence and
locked gate. Further, in the absence of clear guidance to the contrary, an officer reading the
unpublished Tenth Circuit’s decision in Otero (where the Tenth Circuit concluded that passing
through an unlocked gate of a fenced property did not violate the Fourth Amendment) may not
have clear notice that squeezing through a locked gate would lead to a different result.
As noted above, the present case is similar to Nidiffer v. Lovato, where Judge Vázquez
held that an officer jumping over a locked gate to initiate a knock and talk is unconstitutional, but
that the law was not clearly established to prohibit it. 2024 WL 1172787, at *3. Nidiffer, of
course, cannot clearly establish the law, as it did not result in a published Tenth Circuit opinion
and, even if the Tenth Circuit published its opinion, it did not address the constitutionality of the
police officers’ actions in that case. Like Judge Vázquez in Nidiffer, the Court finds that even
though the defendant officer’s actions violated the Fourth Amendment, the lack of clearly
Case 1:25-cv-00509-SCY-JHR Document 66 Filed 03/19/26 Page 20 of 21

21
established law to notify the officer that his conduct would be unconstitutional means the officer
is entitled to the protection of qualified immunity.
CONCLUSION
The Court GRANTS Joseph Acord’s Motion For Summary Judgment For Claims
Brought By Dana And Jerry Gum On The Basis Of Qualified Immunity, Doc. 42, and grants
summary judgment in Defendant Acord’s favor on all claims brought by Plaintiffs Dana and
Jerry Gum.
_____________________________________
STEVEN C. YARBROUGH
UNITED STATES MAGISTRATE JUDGE
Case 1:25-cv-00509-SCY-JHR Document 66 Filed 03/19/26 Page 21 of 21