September 18, 2019- Mateo Romero v. Christopher Mooney, No. A-1-CA-36592

A-1-CA-36592Nmctapp

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
MATEO ROMERO,	2
Plaintiff-Appellant,	3
v. 	No. A-1-CA-36592	4
CHRISTOPHER MOONEY,	5
LOUIS CARLOS, in their individual	6
and official capacities, THE CITY OF	7
SANTA FE, and JOHN DOE and	8
JANE DOES (I-V),	9
Defendants-Appellees.	10
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY	11
David K. Thomson, District Judge	12
ACLU of New Mexico	13
Leon Howard	14
Kristin Greer Love	15
Albuquerque, NM	16
The Lucero Law Office, LLC	17
Jacob Vallejos	18
Albuquerque, NM	19
for Appellant	20
Robles, Rael & Anaya, P.C.	21
Luis Robles	22
David Roman	23
Albuquerque, NM	24
for Appellees	25
Court of Appeals of New Mexico
Filed 9/18/2019 11:19 AM
2
MEMORANDUM OPINION	1
B. ZAMORA, Judge.	2
{1} 	Plaintiff Mateo Romero brought a civil rights action against Christopher	3
Mooney and Louis Carlos (Defendants), police officers with the Santa Fe Police	4
Department (SFPD), as well as the City of Santa Fe.1 On appeal, Plaintiff argues that	5
the district court erred in granting Defendants’ motion for summary judgment based	6
on qualified immunity because: (1) the officers’ detention of Plaintiff was a de facto	7
arrest unsupported by probable cause; and (2) the officers prolonged Plaintiff’s	8
detention after their reasonable suspicion to detain him had been dispelled. We	9
affirm.	10
BACKGROUND	11
{2} 	The material facts in this case are not in dispute. On July 7, 2014, SFPD	12
officers responded to a 911 call from a homeowner, Maria Markus that a burglary	13
was in progress at her residence. Dispatch stated that the homeowner returned home	14
and discovered a person inside a vehicle in her driveway and that she was blocking	15
his vehicle in. Officer Christopher Mooney, who was in his patrol car near the Santa	16
Fe Plaza, was the first to respond to the call. While Mooney was en route to the	17
home, dispatch relayed that the homeowner stated that the man was trying to open	18
1 John and Jane Does (I-IV) were named in the underlying complaint but are
not parties to this appeal.
3
her car door and remove her from her vehicle. Dispatch also provided a description	1
of the suspect and the clothing he was wearing.	2
{3} 	Officer Mooney arrived within three and a half minutes after receiving the	3
dispatch, exited his unit with his service rifle, and spoke with Markus, who remained	4
in her vehicle in the driveway. Mooney asked Markus where the suspect was, and	5
she informed him that he was “standing right behind” Mooney. Mooney noticed that	6
Plaintiff, 	who 	matched 	the 	description 	he 	had 	received 	from 	dispatch, 	was	7
approximately ten feet away behind Markus’s vehicle. Mooney walked toward	8
Plaintiff and ordered him to the ground. Plaintiff raised his hands and complied with	9
the officer’s order. In ordering Plaintiff to the ground, Mooney stated that he	10
deployed his service rifle in the low-ready position, where the rifle is held with both	11
hands with the muzzle pointed at the ground in front of the suspect. Once Plaintiff	12
was on the ground, Officer Mooney slung his rifle over his shoulder, handcuffed	13
Plaintiff, and placed him in the back of the police car.	14
{4} 	Soon after, Captain Louis Carlos and other officers arrived and began an	15
investigation, which included checking the home for signs of an intrusion and	16
determining whether anyone else was inside. Captain Carlos also interviewed	17
Markus. After interviewing Markus, Captain Carlos asked Plaintiff for his account	18
of events. Plaintiff told him that he had pulled into the driveway to clean a mess his	19
dog had made by defecating in his car and that he had done so because he did not	20
believe it was safe to park his car on the shoulder of the road. During this time,	21
4
officers determined that there were no signs of a break-in at the home. Officer	1
Mooney then removed Plaintiff’s handcuffs and released him from detention. In	2
total, Plaintiff was detained for approximately fifteen minutes, and the interaction	3
was recorded on a dash camera video and the officer’s belt tape.	4
{5} 	Plaintiff filed a complaint alleging civil rights violations and tort claims	5
against Officer Mooney, Captain Carlos, and the City of Santa Fe. Defendants filed	6
a motion for summary judgment arguing they were entitled to qualified immunity as	7
to Plaintiff’s federal claims and dismissal of Plaintiff’s state law claims because their	8
conduct was reasonable and lawful. The district court concluded that, based on the	9
undisputed material facts, the officers were entitled to qualified immunity because	10
the evidence did not establish that they violated clearly established law and their	11
actions were objectively reasonable. Because the district court determined that the	12
officers were entitled to qualified immunity on the federal constitutional claims for	13
excessive force (Count I) and unreasonable seizure (Counts II and III), Plaintiff’s	14
federal municipal liability claim against the City of Santa Fe was dismissed as well.	15
Finally, because Plaintiff’s federal claims failed as a matter of law, the district court	16
determined that Plaintiff’s state law claims for assault and battery, excessive force,	17
unreasonable seizure, and municipal liability also fail, and granted the motion for	18
summary judgment dismissing all of Plaintiff’s claims.2 This appeal followed.	19
2 The district court concluded that, because Plaintiff’s constitutional claims
against the individual Defendants failed, his claim against the City of Santa Fe
5
DISCUSSION	1
I. 	Standard of Review and Qualified Immunity	2
{6} 	The doctrine of qualified immunity protects government officials, including	3
police officers, from liability for civil claims “insofar as their conduct does not	4
violate clearly established statutory or constitutional rights of which a reasonable	5
person would have known.” Chavez v. Bd. of Cty. Comm’rs of Curry Cty., 2001-	6
NMCA-065, ¶ 14, 130 N.M. 753, 31 P.3d 1027 (internal quotation marks and	7
citation omitted). “[Q]ualified immunity provides ample protection to all but the	8
plainly incompetent or those who knowingly violate the law. Put another way,	9
qualified immunity is the usual rule, such that only in exceptional cases will	10
governmental actors have no immunity from [42 U.S.C. § 1983 (2018)] claims.”	11
Cockrell v. Bd. of Regents of N.M. State Univ., 1999-NMCA-073, ¶ 8, 127 N.M.	12
478, 983 P.2d 427 (internal quotation marks and citations omitted). Because	13
qualified immunity is a defense to suit, rather than simply a defense to liability, it	14
should be resolved “at the earliest possible stage in litigation.” Pearson v. Callahan,	15
555 U.S. 223, 232 (2009) (internal quotation marks and citation omitted). Where the	16
(Count IV) and his state law claims (Counts V-VIII) failed as well. Plaintiff does not
contest this on appeal, but does assert that “If [he] prevails in this appeal concerning
the issues presented herein, his state law claims must also remain as his state law
claims were dismissed as a direct result of the dismissal of his Fourth Amendment
claims.” Because we hold that Plaintiff cannot prevail on his federal civil rights
claims, we need not reach the question of whether he has correctly stated the law
governing his state law claims.
6
material facts are not in dispute, a qualified immunity claim asserted in response to	1
an alleged Fourth Amendment violation presents a question of law that should be	2
decided by the court. Starko, Inc. v. Gallegos, 2006-NMCA-085, ¶ 11, 140 N.M.	3
136, 140 P.3d 1085 (holding that the applicability of qualified immunity is a question	4
of law); see also Scott v. Harris, 550 U.S. 372, 381 n.8 (2007) (holding that on	5
summary judgment, once the relevant facts are determined and the court has drawn	6
all inferences in favor of the nonmoving party, reasonableness of Fourth Amendment	7
seizure is a “pure question of law”); Medina v. Cram, 252 F.3d 1124, 1131 (10th	8
Cir. 2001) (holding that whether police officers asserting qualified immunity defense	9
to Fourth Amendment claim acted reasonably is a legal determination in the absence	10
of disputed material facts).	11
{7} 	“On appeal from a grant of summary judgment based on qualified immunity,	12
we view the evidence presented in the light most favorable to the party opposing	13
summary judgment and review the district court’s decision de novo.” Benavidez v.	14
Shutiva, 2015-NMCA-065, ¶ 8, 350 P.3d 1234 (alteration, internal quotation marks,	15
and citation omitted). When a defendant asserts qualified immunity, the burden	16
shifts to the plaintiff, who must establish the defendant’s actions violated a	17
constitutional or statutory right that was clearly established at the time of the	18
defendant’s conduct. Medina, 252 F.3d at 1128.	19
{8} 	We use a two-step analysis when evaluating a claim of qualified immunity:	20
“(1) the defendant’s alleged conduct violated a constitutional or statutory right, and	21
7
(2) the right was clearly established at the time of the conduct.” Benavidez, 2015-	1
NMCA-065, ¶ 6 (internal quotation marks and citation omitted). A plaintiff must	2
establish the violation of a right with specificity; broad allegations do not satisfy the	3
burden. Mullenix v. Luna, ___ U.S. ___, ___, 136 S. Ct. 305, 308 (2015) (noting that	4
the issue is “whether the violative nature of particular conduct is clearly established”	5
(internal quotation marks and citation omitted)); Romero v. Fay, 45 F.3d 1472, 1475	6
(10th Cir. 1995) (holding that a plaintiff must articulate the clearly established right	7
and the conduct that violated the right with specificity). Even if Plaintiff satisfies the	8
first step of the analysis, Defendants are still entitled to qualified immunity if the law	9
governing the violation was not “clearly established” at the time of the alleged	10
violation. See Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995) (stating	11
that where a defendant asserts qualified immunity, the plaintiff bears a heavy two-	12
part burden). “In evaluating whether the law was clearly established, we ordinarily	13
look to decisions of the United States Supreme Court, the federal courts of appeal,	14
and the highest state court where the cause of action arose.” Chavez, 2001-NMCA-	15
065, ¶ 20.	16
II. 	The Means Used to Effectuate Plaintiff’s Seizure Were Reasonable, Did	17
Not 	Amount 	to 	a 	De 	Facto 	Arrest, 	and 	Did 	Not 	Violate 	Clearly	18
Established Law	19
{9} 	We first address Plaintiff’s contention that the district court erred in ruling	20
Defendants are entitled to qualified immunity because his detention constituted an	21
arrest without probable cause in violation of the Fourth Amendment. Specifically,	22
8
Plaintiff argues that Officer Mooney impermissibly relied on dispatch and failed to	1
assess independently whether Plaintiff posed a threat or flight risk when he arrived	2
on the scene. He also claims that, with limited exceptions not present here, the use	3
of handcuffs or a gun transforms a detention into a de facto arrest and that Officer	4
Mooney’s arrest of Plaintiff was unsupported by probable cause. Finally, he	5
contends, 	without 	identifying 	any 	disputed 	material 	facts 	regarding 	Officer	6
Mooney’s use of force, that the question of whether excessive force was used to	7
effectuate a detention is a question for the jury and should not have been decided on	8
Defendants’ motion for summary judgment. Defendants argue that Mooney had the	9
authority to conduct an investigatory detention, and that the display of a firearm and	10
use of handcuffs during the detention was reasonably related to the circumstances of	11
the detention.	12
{10} 	We 	first 	address 	Plaintiff’s 	contention 	that 	Officer 	Mooney 	failed 	to	13
corroborate the information from dispatch and, as a result, Officer Mooney was	14
precluded from relying on such information in detaining Plaintiff. The circumstances	15
giving rise to the investigative detention in this case included reports from dispatch	16
of a burglary in progress and of a man trying to pull a woman from her vehicle.	17
Contrary to Plaintiff’s assertions, Officer Mooney’s observations corroborated	18
several of the details in the dispatch, including that (1) a woman had blocked a	19
vehicle from leaving her driveway by parking her vehicle behind it; (2) a man was	20
standing near the woman’s vehicle; and (3) the man standing near the vehicle fit the	21
9
description from dispatch. As such, Officer Mooney properly relied on information	1
from dispatch in detaining Plaintiff. See State v. Cobbs, 1985-NMCA-105, ¶¶ 12-	2
17, 103 N.M. 623, 711 P.2d 900 (concluding reasonable suspicion existed for	3
investigative stop where dispatch described that a possible burglary was in progress	4
and two suspects were in vehicle in back of residence, and the officer observed two	5
individuals in vehicle); see also Lundstrom v. Romero, 616 F.3d 1108, 1123-1125	6
(10th Cir. 2010) (holding detention was unreasonable where officers were unable to	7
confirm any of the facts reported in the 911 call).	8
{11} 	We next review Plaintiff’s claim that Defendants subjected him to a de facto	9
arrest without probable cause. The means used to effectuate an investigatory	10
detention, like its duration, must be measured against the circumstances giving rise	11
to the intrusion in the first instance. United States v. Neff, 300 F.3d 1217, 1220	12
(2002). Where the scope of the detention exceeds these limits, the detention becomes	13
an arrest that must be supported by probable cause. Id. The key inquiry, however, is	14
not “whether the force used was so great as to render it an arrest but, instead, whether	15
the force used was reasonable.” United States v. Merritt, 695 F.2d 1263, 1274 (10th	16
Cir. 1982); see also Lundstrom, 616 F.3d at 1120-1122 (holding that neither the use	17
of 	handcuffs 	nor 	of 	a 	gun 	necessarily 	renders 	an 	investigative 	detention	18
unreasonable). Moreover, courts should refrain from second-guessing the decisions	19
of police officers, who may face dangerous conditions on the scene. See Holland ex	20
rel. Overdorff v. Harrington, 268 F.3d 1179, 1188 (10th Cir. 2001).	21
10
{12} 	“Though some have taken the view that the use of guns automatically turns	1
the stop into an arrest,” the Tenth Circuit Court of Appeals has held that “the use of	2
guns in connection with a stop is permissible where the police reasonably believe	3
they are necessary for their protection.” Merritt, 695 F.2d at 1273 (citation omitted).	4
In this case, the nature of the call suggested the possibility of two serious crimes in	5
progress—assault and burglary—and we have specifically recognized burglary as	6
“the type of crime for which the offender would likely be armed.” Cobbs, 1985-	7
NMCA-105, ¶ 35. In addition, Officer Mooney was alone when he responded to the	8
call, and while Officer Mooney spoke with Markus, Plaintiff approached him from	9
behind, appearing just ten feet from the officer. Given the foregoing, Officer	10
Mooney acted reasonably when displaying his weapon in a low-ready position and	11
in using handcuffs to secure Plaintiff until backup officers could arrive and assist	12
with the investigation. See Lundstrom, 616 F.3d at 1121-1122 (holding that officer	13
effectuated a reasonable seizure when she briefly pointed her gun at individual	14
because officer’s view was obstructed and she became concerned individual was	15
armed); United States v. Perdue, 8 F.3d 1455, 1463 (1993) (holding that ordering a	16
suspect to lie on the ground, perhaps in handcuffs, was justified where officers were	17
reasonably concerned for their safety and noting trend that use of intrusive	18
precautionary 	measures 	does 	not 	necessarily 	transform 	lawful 	investigative	19
detention 	into 	an 	arrest). 	Under 	these 	circumstances, 	Officer 	Mooney 	acted	20
11
reasonably and did not effectuate an arrest without probable cause in violation of	1
Plaintiff’s Fourth Amendment rights.	2
{13} 	In support of his contention that Officer Mooney’s actions amounted to an	3
unlawful arrest, Plaintiff relies primarily on United States v. Melendez-Garcia, 28	4
F.3d 1046 (10th Cir. 1994). In Melendez-Garcia, the court held that the use of	5
handcuffs during an investigative detention supported only by the suspicion that the	6
suspects were trafficking drugs was unreasonable because, without evidence that the	7
suspects were violent or had guns, “the naked fact that drugs are suspected will not	8
support a per se justification for the use of guns or handcuffs.” Id. at 1053. But as	9
already discussed above, Officer Mooney’s use of a firearm and handcuffs was not	10
unreasonable under the 	circumstances. At 	a 	minimum, 	the 	circumstances 	in	11
Melendez-Garcia are sufficiently different from the circumstances here that it cannot	12
be said that “in the light of pre-existing law[,] the unlawfulness [of the conduct]	13
[would have been] apparent.” Chavez, 2001-NMCA-065, ¶ 16 (internal quotation	14
marks and citation omitted).	15
{14} 	Plaintiff also contends that the issue of whether Officer Mooney used	16
excessive force to detain him was a question of fact for the jury. We disagree. Where	17
a defendant raises a defense of qualified immunity, in the absence of disputed	18
material facts, whether the defendant violated clearly established law is a question	19
of law that may and should be adjudicated on a motion for summary judgment.	20
Medina, 252 F.3d at 1131; Starko, Inc., 2006-NMCA-085, ¶ 11. Because Plaintiff	21
12
has not established that any material facts are in dispute, the district court was	1
permitted to decide the question of reasonableness “early in the litigation in order to	2
resolve the ‘legal question’ presented by a qualified immunity defense.” Medina,	3
252 F.3d at 1131. And based on our analysis above, we agree with the district court	4
that 	Officer 	Mooney’s 	use 	of 	force 	was 	objectively 	reasonable 	under 	the	5
circumstances and Plaintiff has failed to establish a violation of clearly established	6
law.	7
III. 	Defendants’ Actions in Detaining Plaintiff Were Reasonable in Scope	8
{15} 	Plaintiff argues that the district court erred in ruling that Defendants are	9
entitled to qualified immunity because Officer Mooney and Captain Carlos violated	10
his clearly established right under the Fourth Amendment to be released once	11
reasonable suspicion for his detention had been dispelled. Defendants contend that	12
the entire detention was directly related to the reason Plaintiff was first detained and	13
that the officers never tried to extend the investigation in a different direction. We	14
agree with Defendants.	15
{16} 	“Fourth Amendment reasonableness is predominantly an objective inquiry.	16
We ask whether the circumstances, viewed objectively, justify the challenged	17
action.” Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011) (alteration, internal quotation	18
marks, and citation omitted). An investigatory stop must be reasonable at its	19
inception and its scope must be reasonably related to the circumstances that justified	20
the detention. See United States v. Sharpe, 470 U.S. 675, 682 (1985) (holding that	21
13
the reasonableness of an investigative stop depends on whether the stop was	1
reasonable at its inception and reasonably related in scope to the circumstances	2
which justified the interference). In evaluating whether the scope of a detention was	3
permissible, courts cannot refer to a “bright-line” rule but must examine events in	4
light of “common sense and ordinary human experience.” Neff, 300 F.3d at 1220	5
(internal quotation marks and citation omitted).	6
{17} 	Plaintiff contends that any reasonable suspicion that may have arisen because	7
of the 911 call was dissipated once officers “cleared” Markus’ house and verified	8
there were no signs of a burglary, and that his detention for approximately six	9
minutes beyond that point was therefore unconstitutional. Plaintiff relies on United	10
States v. Lopez, 443 F.3d 1280 (10th Cir. 2006), United States v. Lambert, 46 F.3d	11
1064 (10th Cir. 1995), United States v. McSwain, 29 F.3d 558 (10th Cir. 1994) and	12
Martinez v. Mares, 613 F. App’x 731 (10th Cir. 2015).	13
{18} 	Neither Lambert nor Lopez concern whether a detention justified at its	14
inception extended beyond dissipation of reasonable suspicion. Instead, each	15
examines whether specific encounters with law enforcement were consensual or,	16
instead, amounted to investigatory detentions requiring reasonable suspicion. In	17
Lambert, 	the 	court 	examined 	whether 	a 	consensual 	encounter 	became 	non-	18
consensual over time, thus subjecting it to Fourth Amendment protection. See 46	19
F.3d at 1067 (stating issues under review as (1) whether a seizure occurred; and (2)	20
if so, whether officers had reasonable suspicion at the time of the seizure). In Lopez,	21
14
the question was whether a specific encounter between law enforcement and a man	1
standing next to a vehicle was consensual. 443 F.3d at 1283. Because the court found	2
that it was not, and the government conceded that no reasonable suspicion supported	3
a detention, the encounter was deemed an unconstitutional seizure. Id. at 1286.	4
{19} 	The remaining two authorities cited by Plaintiff are similarly unavailing.	5
Contrary to the facts in this case, McSwain and Martinez both concern encounters	6
with law enforcement in which officers could and did dispel reasonable suspicion	7
by conducting a single, discrete, conclusive inquiry, yet nonetheless continued	8
investigatory detentions after that point. In McSwain, an officer stopped a vehicle to	9
verify the validity of its registration sticker. 29 F.3d at 561. Once the officer verified	10
that the sticker was valid, the purpose of the stop was satisfied and he was not entitled	11
to continue the detention of the driver to question him about other matters. Id. In	12
Martinez, 	an 	unpublished 	decision, 	officers 	violated 	the 	plaintiff’s 	Fourth	13
Amendment rights when they continued to detain him and pat him down after they	14
had readily determined that he was not the man complained of by the 911 caller. 613	15
F. App’x at 738-39.	16
{20} 	Unlike the plaintiffs in McSwain and Martinez, Plaintiff was not detained	17
longer than necessary to dispel the reasonable suspicion that gave rise to his	18
detention in the first place. Here, officers had reasonable suspicion to detain Plaintiff	19
in order to conduct an investigation based on information from a 911 call that: (1) a	20
burglary had been attempted; and (2) a man on the premises had attempted to open	21
15
the complaining witness’s car door and get her out of her vehicle. While Plaintiff	1
contends the second claim was a mistake on the part of the dispatcher, the officers	2
were entitled to rely on information from dispatch when evaluating whether they had	3
reasonable 	suspicion 	to 	detain 	Plaintiff. 	See 	Cobbs, 	1985-NMCA-105, 	¶ 	15	4
(concluding reasonable suspicion existed for investigative stop where officer	5
corroborated facts contained in dispatch).	6
{21} 	Given the content of the dispatch, as well as Officer Mooney’s observations	7
on the scene confirming the presence of two vehicles and two parties as described in	8
the 911 call, it was reasonable for officers to interview Markus and Plaintiff to	9
reconcile their conflicting stories as well as to examine the home for signs of a break-	10
in while Plaintiff was detained. Although Plaintiff argues that he should have been	11
released as soon as the officers determined that the home had not been burglarized,	12
the officers were investigating suspicions of attempted burglary and assault,	13
potential crimes that are not dispelled immediately upon determining that the home	14
had not been burglarized. “In assessing whether a detention is too long in duration	15
to be justified as an investigative stop, we consider it appropriate to examine whether	16
the police diligently pursued a means of investigation that was likely to confirm or	17
dispel their suspicions quickly[.]” Sharpe, 470 U.S. at 686. The undisputed evidence	18
established that Officer Mooney, Captain Carlos, and the other officers on the scene	19
worked diligently and efficiently to investigate these suspicions, and that they	20
released 	Plaintiff 	promptly 	once 	they 	had 	done 	so. 	Because 	the 	officers’	21
16
investigative steps were “justified at [their] inception, and . . . reasonably related in	1
scope to the circumstances which justified the interference in the first place[,]” State	2
v. Neal, 2007-NMSC-043, ¶ 18, 142 N.M. 176, 164 P.3d 57 (internal quotation	3
marks and citation omitted), we perceive no error in the district court’s conclusion	4
that Defendants’ actions were objectively reasonable and there was no showing that	5
Officer Mooney violated clearly established law. Consequently, we affirm the	6
district court’s determination that Defendants are entitled to qualified immunity.	7
{22} 	Finally, Plaintiff did not raise any separate argument concerning his state law	8
claims on appeal, arguing only that if he prevails on his federal law claims that his	9
state law claims must be reinstated as well. Finding no basis for reversal on the	10
federal claims, we affirm the district court’s order granting summary judgment on	11
all Plaintiff’s claims. See State v. Fuentes, 2010-NMCA-027, ¶ 29, 147 N.M. 761,	12
228 P.3d 1181 (explaining that this Court does not review unclear or undeveloped	13
arguments on appeal that would require this Court to guess at what a party’s	14
arguments might be).	15
CONCLUSION	16
{23} 	For the foregoing reasons, we affirm.	17
{24} 	IT IS SO ORDERED.	18
___________________________	19
BRIANA H. ZAMORA, Judge	20
17
WE CONCUR:	1
___________________________
JENNIFER L. ATTREP, Judge	2
___________________________	3
MEGAN P. DUFFY, Judge	4

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Corrections to this opinion not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM
Compilation Commission. The Court will ensure that the electronic version of this opinion is updated accordingly in Odyssey.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico
MATEO ROMERO, Ul 79/18/2019 11:19 AM
Plaintiff-A ppellant, NE ,
Mark Reynolds
Vv. No. A-1-CA-36592
CHRISTOPHER MOOMNEY,
LOUIS CARLOS, in their individual

and offical capacities, THE CITY OF
SANTA FE, and JOHN DOE and
JANE DOES (-V),

Defendants-A ppellees.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
David K. Thomson, District J udge

ACLU of New Mexico
Leon Howard
Knistin Greer Love

Albuquerque, NM

The Lucero Law Office, LLC
Jacob Vallejos

Albuquerque, NM
for Appellant

Robles, Rael & Anaya, P.C.
Luis Robles
David Roman

Albuquerque, NM

for Appellees

2
MEMORANDUM OPINION	1
B. ZAMORA, Judge.	2
{1} 	Plaintiff Mateo Romero brought a civil rights action against Christopher	3
Mooney and Louis Carlos (Defendants), police officers with the Santa Fe Police	4
Department (SFPD), as well as the City of Santa Fe.1 On appeal, Plaintiff argues that	5
the district court erred in granting Defendants’ motion for summary judgment based	6
on qualified immunity because: (1) the officers’ detention of Plaintiff was a de facto	7
arrest unsupported by probable cause; and (2) the officers prolonged Plaintiff’s	8
detention after their reasonable suspicion to detain him had been dispelled. We	9
affirm.	10
BACKGROUND	11
{2} 	The material facts in this case are not in dispute. On July 7, 2014, SFPD	12
officers responded to a 911 call from a homeowner, Maria Markus that a burglary	13
was in progress at her residence. Dispatch stated that the homeowner returned home	14
and discovered a person inside a vehicle in her driveway and that she was blocking	15
his vehicle in. Officer Christopher Mooney, who was in his patrol car near the Santa	16
Fe Plaza, was the first to respond to the call. While Mooney was en route to the	17
home, dispatch relayed that the homeowner stated that the man was trying to open	18
1 John and Jane Does (I-IV) were named in the underlying complaint but are
not parties to this appeal.

3
her car door and remove her from her vehicle. Dispatch also provided a description	1
of the suspect and the clothing he was wearing.	2
{3} 	Officer Mooney arrived within three and a half minutes after receiving the	3
dispatch, exited his unit with his service rifle, and spoke with Markus, who remained	4
in her vehicle in the driveway. Mooney asked Markus where the suspect was, and	5
she informed him that he was “standing right behind” Mooney. Mooney noticed that	6
Plaintiff, 	who 	matched 	the 	description 	he 	had 	received 	from 	dispatch, 	was	7
approximately ten feet away behind Markus’s vehicle. Mooney walked toward	8
Plaintiff and ordered him to the ground. Plaintiff raised his hands and complied with	9
the officer’s order. In ordering Plaintiff to the ground, Mooney stated that he	10
deployed his service rifle in the low-ready position, where the rifle is held with both	11
hands with the muzzle pointed at the ground in front of the suspect. Once Plaintiff	12
was on the ground, Officer Mooney slung his rifle over his shoulder, handcuffed	13
Plaintiff, and placed him in the back of the police car.	14
{4} 	Soon after, Captain Louis Carlos and other officers arrived and began an	15
investigation, which included checking the home for signs of an intrusion and	16
determining whether anyone else was inside. Captain Carlos also interviewed	17
Markus. After interviewing Markus, Captain Carlos asked Plaintiff for his account	18
of events. Plaintiff told him that he had pulled into the driveway to clean a mess his	19
dog had made by defecating in his car and that he had done so because he did not	20
believe it was safe to park his car on the shoulder of the road. During this time,	21

4
officers determined that there were no signs of a break-in at the home. Officer	1
Mooney then removed Plaintiff’s handcuffs and released him from detention. In	2
total, Plaintiff was detained for approximately fifteen minutes, and the interaction	3
was recorded on a dash camera video and the officer’s belt tape.	4
{5} 	Plaintiff filed a complaint alleging civil rights violations and tort claims	5
against Officer Mooney, Captain Carlos, and the City of Santa Fe. Defendants filed	6
a motion for summary judgment arguing they were entitled to qualified immunity as	7
to Plaintiff’s federal claims and dismissal of Plaintiff’s state law claims because their	8
conduct was reasonable and lawful. The district court concluded that, based on the	9
undisputed material facts, the officers were entitled to qualified immunity because	10
the evidence did not establish that they violated clearly established law and their	11
actions were objectively reasonable. Because the district court determined that the	12
officers were entitled to qualified immunity on the federal constitutional claims for	13
excessive force (Count I) and unreasonable seizure (Counts II and III), Plaintiff’s	14
federal municipal liability claim against the City of Santa Fe was dismissed as well.	15
Finally, because Plaintiff’s federal claims failed as a matter of law, the district court	16
determined that Plaintiff’s state law claims for assault and battery, excessive force,	17
unreasonable seizure, and municipal liability also fail, and granted the motion for	18
summary judgment dismissing all of Plaintiff’s claims.2 This appeal followed.	19
2 The district court concluded that, because Plaintiff’s constitutional claims
against the individual Defendants failed, his claim against the City of Santa Fe

5
DISCUSSION	1
I. 	Standard of Review and Qualified Immunity	2
{6} 	The doctrine of qualified immunity protects government officials, including	3
police officers, from liability for civil claims “insofar as their conduct does not	4
violate clearly established statutory or constitutional rights of which a reasonable	5
person would have known.” Chavez v. Bd. of Cty. Comm’rs of Curry Cty., 2001-	6
NMCA-065, ¶ 14, 130 N.M. 753, 31 P.3d 1027 (internal quotation marks and	7
citation omitted). “[Q]ualified immunity provides ample protection to all but the	8
plainly incompetent or those who knowingly violate the law. Put another way,	9
qualified immunity is the usual rule, such that only in exceptional cases will	10
governmental actors have no immunity from [42 U.S.C. § 1983 (2018)] claims.”	11
Cockrell v. Bd. of Regents of N.M. State Univ., 1999-NMCA-073, ¶ 8, 127 N.M.	12
478, 983 P.2d 427 (internal quotation marks and citations omitted). Because	13
qualified immunity is a defense to suit, rather than simply a defense to liability, it	14
should be resolved “at the earliest possible stage in litigation.” Pearson v. Callahan,	15
555 U.S. 223, 232 (2009) (internal quotation marks and citation omitted). Where the	16
(Count IV) and his state law claims (Counts V-VIII) failed as well. Plaintiff does not
contest this on appeal, but does assert that “If [he] prevails in this appeal concerning
the issues presented herein, his state law claims must also remain as his state law
claims were dismissed as a direct result of the dismissal of his Fourth Amendment
claims.” Because we hold that Plaintiff cannot prevail on his federal civil rights
claims, we need not reach the question of whether he has correctly stated the law
governing his state law claims.

6
material facts are not in dispute, a qualified immunity claim asserted in response to	1
an alleged Fourth Amendment violation presents a question of law that should be	2
decided by the court. Starko, Inc. v. Gallegos, 2006-NMCA-085, ¶ 11, 140 N.M.	3
136, 140 P.3d 1085 (holding that the applicability of qualified immunity is a question	4
of law); see also Scott v. Harris, 550 U.S. 372, 381 n.8 (2007) (holding that on	5
summary judgment, once the relevant facts are determined and the court has drawn	6
all inferences in favor of the nonmoving party, reasonableness of Fourth Amendment	7
seizure is a “pure question of law”); Medina v. Cram, 252 F.3d 1124, 1131 (10th	8
Cir. 2001) (holding that whether police officers asserting qualified immunity defense	9
to Fourth Amendment claim acted reasonably is a legal determination in the absence	10
of disputed material facts).	11
{7} 	“On appeal from a grant of summary judgment based on qualified immunity,	12
we view the evidence presented in the light most favorable to the party opposing	13
summary judgment and review the district court’s decision de novo.” Benavidez v.	14
Shutiva, 2015-NMCA-065, ¶ 8, 350 P.3d 1234 (alteration, internal quotation marks,	15
and citation omitted). When a defendant asserts qualified immunity, the burden	16
shifts to the plaintiff, who must establish the defendant’s actions violated a	17
constitutional or statutory right that was clearly established at the time of the	18
defendant’s conduct. Medina, 252 F.3d at 1128.	19
{8} 	We use a two-step analysis when evaluating a claim of qualified immunity:	20
“(1) the defendant’s alleged conduct violated a constitutional or statutory right, and	21

7
(2) the right was clearly established at the time of the conduct.” Benavidez, 2015-	1
NMCA-065, ¶ 6 (internal quotation marks and citation omitted). A plaintiff must	2
establish the violation of a right with specificity; broad allegations do not satisfy the	3
burden. Mullenix v. Luna, ___ U.S. ___, ___, 136 S. Ct. 305, 308 (2015) (noting that	4
the issue is “whether the violative nature of particular conduct is clearly established”	5
(internal quotation marks and citation omitted)); Romero v. Fay, 45 F.3d 1472, 1475	6
(10th Cir. 1995) (holding that a plaintiff must articulate the clearly established right	7
and the conduct that violated the right with specificity). Even if Plaintiff satisfies the	8
first step of the analysis, Defendants are still entitled to qualified immunity if the law	9
governing the violation was not “clearly established” at the time of the alleged	10
violation. See Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995) (stating	11
that where a defendant asserts qualified immunity, the plaintiff bears a heavy two-	12
part burden). “In evaluating whether the law was clearly established, we ordinarily	13
look to decisions of the United States Supreme Court, the federal courts of appeal,	14
and the highest state court where the cause of action arose.” Chavez, 2001-NMCA-	15
065, ¶ 20.	16
II. 	The Means Used to Effectuate Plaintiff’s Seizure Were Reasonable, Did	17
Not 	Amount 	to 	a 	De 	Facto 	Arrest, 	and 	Did 	Not 	Violate 	Clearly	18
Established Law	19
{9} 	We first address Plaintiff’s contention that the district court erred in ruling	20
Defendants are entitled to qualified immunity because his detention constituted an	21
arrest without probable cause in violation of the Fourth Amendment. Specifically,	22

8
Plaintiff argues that Officer Mooney impermissibly relied on dispatch and failed to	1
assess independently whether Plaintiff posed a threat or flight risk when he arrived	2
on the scene. He also claims that, with limited exceptions not present here, the use	3
of handcuffs or a gun transforms a detention into a de facto arrest and that Officer	4
Mooney’s arrest of Plaintiff was unsupported by probable cause. Finally, he	5
contends, 	without 	identifying 	any 	disputed 	material 	facts 	regarding 	Officer	6
Mooney’s use of force, that the question of whether excessive force was used to	7
effectuate a detention is a question for the jury and should not have been decided on	8
Defendants’ motion for summary judgment. Defendants argue that Mooney had the	9
authority to conduct an investigatory detention, and that the display of a firearm and	10
use of handcuffs during the detention was reasonably related to the circumstances of	11
the detention.	12
{10} 	We 	first 	address 	Plaintiff’s 	contention 	that 	Officer 	Mooney 	failed 	to	13
corroborate the information from dispatch and, as a result, Officer Mooney was	14
precluded from relying on such information in detaining Plaintiff. The circumstances	15
giving rise to the investigative detention in this case included reports from dispatch	16
of a burglary in progress and of a man trying to pull a woman from her vehicle.	17
Contrary to Plaintiff’s assertions, Officer Mooney’s observations corroborated	18
several of the details in the dispatch, including that (1) a woman had blocked a	19
vehicle from leaving her driveway by parking her vehicle behind it; (2) a man was	20
standing near the woman’s vehicle; and (3) the man standing near the vehicle fit the	21

9
description from dispatch. As such, Officer Mooney properly relied on information	1
from dispatch in detaining Plaintiff. See State v. Cobbs, 1985-NMCA-105, ¶¶ 12-	2
17, 103 N.M. 623, 711 P.2d 900 (concluding reasonable suspicion existed for	3
investigative stop where dispatch described that a possible burglary was in progress	4
and two suspects were in vehicle in back of residence, and the officer observed two	5
individuals in vehicle); see also Lundstrom v. Romero, 616 F.3d 1108, 1123-1125	6
(10th Cir. 2010) (holding detention was unreasonable where officers were unable to	7
confirm any of the facts reported in the 911 call).	8
{11} 	We next review Plaintiff’s claim that Defendants subjected him to a de facto	9
arrest without probable cause. The means used to effectuate an investigatory	10
detention, like its duration, must be measured against the circumstances giving rise	11
to the intrusion in the first instance. United States v. Neff, 300 F.3d 1217, 1220	12
(2002). Where the scope of the detention exceeds these limits, the detention becomes	13
an arrest that must be supported by probable cause. Id. The key inquiry, however, is	14
not “whether the force used was so great as to render it an arrest but, instead, whether	15
the force used was reasonable.” United States v. Merritt, 695 F.2d 1263, 1274 (10th	16
Cir. 1982); see also Lundstrom, 616 F.3d at 1120-1122 (holding that neither the use	17
of 	handcuffs 	nor 	of 	a 	gun 	necessarily 	renders 	an 	investigative 	detention	18
unreasonable). Moreover, courts should refrain from second-guessing the decisions	19
of police officers, who may face dangerous conditions on the scene. See Holland ex	20
rel. Overdorff v. Harrington, 268 F.3d 1179, 1188 (10th Cir. 2001).	21

10
{12} 	“Though some have taken the view that the use of guns automatically turns	1
the stop into an arrest,” the Tenth Circuit Court of Appeals has held that “the use of	2
guns in connection with a stop is permissible where the police reasonably believe	3
they are necessary for their protection.” Merritt, 695 F.2d at 1273 (citation omitted).	4
In this case, the nature of the call suggested the possibility of two serious crimes in	5
progress—assault and burglary—and we have specifically recognized burglary as	6
“the type of crime for which the offender would likely be armed.” Cobbs, 1985-	7
NMCA-105, ¶ 35. In addition, Officer Mooney was alone when he responded to the	8
call, and while Officer Mooney spoke with Markus, Plaintiff approached him from	9
behind, appearing just ten feet from the officer. Given the foregoing, Officer	10
Mooney acted reasonably when displaying his weapon in a low-ready position and	11
in using handcuffs to secure Plaintiff until backup officers could arrive and assist	12
with the investigation. See Lundstrom, 616 F.3d at 1121-1122 (holding that officer	13
effectuated a reasonable seizure when she briefly pointed her gun at individual	14
because officer’s view was obstructed and she became concerned individual was	15
armed); United States v. Perdue, 8 F.3d 1455, 1463 (1993) (holding that ordering a	16
suspect to lie on the ground, perhaps in handcuffs, was justified where officers were	17
reasonably concerned for their safety and noting trend that use of intrusive	18
precautionary 	measures 	does 	not 	necessarily 	transform 	lawful 	investigative	19
detention 	into 	an 	arrest). 	Under 	these 	circumstances, 	Officer 	Mooney 	acted	20

11
reasonably and did not effectuate an arrest without probable cause in violation of	1
Plaintiff’s Fourth Amendment rights.	2
{13} 	In support of his contention that Officer Mooney’s actions amounted to an	3
unlawful arrest, Plaintiff relies primarily on United States v. Melendez-Garcia, 28	4
F.3d 1046 (10th Cir. 1994). In Melendez-Garcia, the court held that the use of	5
handcuffs during an investigative detention supported only by the suspicion that the	6
suspects were trafficking drugs was unreasonable because, without evidence that the	7
suspects were violent or had guns, “the naked fact that drugs are suspected will not	8
support a per se justification for the use of guns or handcuffs.” Id. at 1053. But as	9
already discussed above, Officer Mooney’s use of a firearm and handcuffs was not	10
unreasonable under the 	circumstances. At 	a 	minimum, 	the 	circumstances 	in	11
Melendez-Garcia are sufficiently different from the circumstances here that it cannot	12
be said that “in the light of pre-existing law[,] the unlawfulness [of the conduct]	13
[would have been] apparent.” Chavez, 2001-NMCA-065, ¶ 16 (internal quotation	14
marks and citation omitted).	15
{14} 	Plaintiff also contends that the issue of whether Officer Mooney used	16
excessive force to detain him was a question of fact for the jury. We disagree. Where	17
a defendant raises a defense of qualified immunity, in the absence of disputed	18
material facts, whether the defendant violated clearly established law is a question	19
of law that may and should be adjudicated on a motion for summary judgment.	20
Medina, 252 F.3d at 1131; Starko, Inc., 2006-NMCA-085, ¶ 11. Because Plaintiff	21

12
has not established that any material facts are in dispute, the district court was	1
permitted to decide the question of reasonableness “early in the litigation in order to	2
resolve the ‘legal question’ presented by a qualified immunity defense.” Medina,	3
252 F.3d at 1131. And based on our analysis above, we agree with the district court	4
that 	Officer 	Mooney’s 	use 	of 	force 	was 	objectively 	reasonable 	under 	the	5
circumstances and Plaintiff has failed to establish a violation of clearly established	6
law.	7
III. 	Defendants’ Actions in Detaining Plaintiff Were Reasonable in Scope	8
{15} 	Plaintiff argues that the district court erred in ruling that Defendants are	9
entitled to qualified immunity because Officer Mooney and Captain Carlos violated	10
his clearly established right under the Fourth Amendment to be released once	11
reasonable suspicion for his detention had been dispelled. Defendants contend that	12
the entire detention was directly related to the reason Plaintiff was first detained and	13
that the officers never tried to extend the investigation in a different direction. We	14
agree with Defendants.	15
{16} 	“Fourth Amendment reasonableness is predominantly an objective inquiry.	16
We ask whether the circumstances, viewed objectively, justify the challenged	17
action.” Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011) (alteration, internal quotation	18
marks, and citation omitted). An investigatory stop must be reasonable at its	19
inception and its scope must be reasonably related to the circumstances that justified	20
the detention. See United States v. Sharpe, 470 U.S. 675, 682 (1985) (holding that	21

13
the reasonableness of an investigative stop depends on whether the stop was	1
reasonable at its inception and reasonably related in scope to the circumstances	2
which justified the interference). In evaluating whether the scope of a detention was	3
permissible, courts cannot refer to a “bright-line” rule but must examine events in	4
light of “common sense and ordinary human experience.” Neff, 300 F.3d at 1220	5
(internal quotation marks and citation omitted).	6
{17} 	Plaintiff contends that any reasonable suspicion that may have arisen because	7
of the 911 call was dissipated once officers “cleared” Markus’ house and verified	8
there were no signs of a burglary, and that his detention for approximately six	9
minutes beyond that point was therefore unconstitutional. Plaintiff relies on United	10
States v. Lopez, 443 F.3d 1280 (10th Cir. 2006), United States v. Lambert, 46 F.3d	11
1064 (10th Cir. 1995), United States v. McSwain, 29 F.3d 558 (10th Cir. 1994) and	12
Martinez v. Mares, 613 F. App’x 731 (10th Cir. 2015).	13
{18} 	Neither Lambert nor Lopez concern whether a detention justified at its	14
inception extended beyond dissipation of reasonable suspicion. Instead, each	15
examines whether specific encounters with law enforcement were consensual or,	16
instead, amounted to investigatory detentions requiring reasonable suspicion. In	17
Lambert, 	the 	court 	examined 	whether 	a 	consensual 	encounter 	became 	non-	18
consensual over time, thus subjecting it to Fourth Amendment protection. See 46	19
F.3d at 1067 (stating issues under review as (1) whether a seizure occurred; and (2)	20
if so, whether officers had reasonable suspicion at the time of the seizure). In Lopez,	21

14
the question was whether a specific encounter between law enforcement and a man	1
standing next to a vehicle was consensual. 443 F.3d at 1283. Because the court found	2
that it was not, and the government conceded that no reasonable suspicion supported	3
a detention, the encounter was deemed an unconstitutional seizure. Id. at 1286.	4
{19} 	The remaining two authorities cited by Plaintiff are similarly unavailing.	5
Contrary to the facts in this case, McSwain and Martinez both concern encounters	6
with law enforcement in which officers could and did dispel reasonable suspicion	7
by conducting a single, discrete, conclusive inquiry, yet nonetheless continued	8
investigatory detentions after that point. In McSwain, an officer stopped a vehicle to	9
verify the validity of its registration sticker. 29 F.3d at 561. Once the officer verified	10
that the sticker was valid, the purpose of the stop was satisfied and he was not entitled	11
to continue the detention of the driver to question him about other matters. Id. In	12
Martinez, 	an 	unpublished 	decision, 	officers 	violated 	the 	plaintiff’s 	Fourth	13
Amendment rights when they continued to detain him and pat him down after they	14
had readily determined that he was not the man complained of by the 911 caller. 613	15
F. App’x at 738-39.	16
{20} 	Unlike the plaintiffs in McSwain and Martinez, Plaintiff was not detained	17
longer than necessary to dispel the reasonable suspicion that gave rise to his	18
detention in the first place. Here, officers had reasonable suspicion to detain Plaintiff	19
in order to conduct an investigation based on information from a 911 call that: (1) a	20
burglary had been attempted; and (2) a man on the premises had attempted to open	21

15
the complaining witness’s car door and get her out of her vehicle. While Plaintiff	1
contends the second claim was a mistake on the part of the dispatcher, the officers	2
were entitled to rely on information from dispatch when evaluating whether they had	3
reasonable 	suspicion 	to 	detain 	Plaintiff. 	See 	Cobbs, 	1985-NMCA-105, 	¶ 	15	4
(concluding reasonable suspicion existed for investigative stop where officer	5
corroborated facts contained in dispatch).	6
{21} 	Given the content of the dispatch, as well as Officer Mooney’s observations	7
on the scene confirming the presence of two vehicles and two parties as described in	8
the 911 call, it was reasonable for officers to interview Markus and Plaintiff to	9
reconcile their conflicting stories as well as to examine the home for signs of a break-	10
in while Plaintiff was detained. Although Plaintiff argues that he should have been	11
released as soon as the officers determined that the home had not been burglarized,	12
the officers were investigating suspicions of attempted burglary and assault,	13
potential crimes that are not dispelled immediately upon determining that the home	14
had not been burglarized. “In assessing whether a detention is too long in duration	15
to be justified as an investigative stop, we consider it appropriate to examine whether	16
the police diligently pursued a means of investigation that was likely to confirm or	17
dispel their suspicions quickly[.]” Sharpe, 470 U.S. at 686. The undisputed evidence	18
established that Officer Mooney, Captain Carlos, and the other officers on the scene	19
worked diligently and efficiently to investigate these suspicions, and that they	20
released 	Plaintiff 	promptly 	once 	they 	had 	done 	so. 	Because 	the 	officers’	21

16
investigative steps were “justified at [their] inception, and . . . reasonably related in	1
scope to the circumstances which justified the interference in the first place[,]” State	2
v. Neal, 2007-NMSC-043, ¶ 18, 142 N.M. 176, 164 P.3d 57 (internal quotation	3
marks and citation omitted), we perceive no error in the district court’s conclusion	4
that Defendants’ actions were objectively reasonable and there was no showing that	5
Officer Mooney violated clearly established law. Consequently, we affirm the	6
district court’s determination that Defendants are entitled to qualified immunity.	7
{22} 	Finally, Plaintiff did not raise any separate argument concerning his state law	8
claims on appeal, arguing only that if he prevails on his federal law claims that his	9
state law claims must be reinstated as well. Finding no basis for reversal on the	10
federal claims, we affirm the district court’s order granting summary judgment on	11
all Plaintiff’s claims. See State v. Fuentes, 2010-NMCA-027, ¶ 29, 147 N.M. 761,	12
228 P.3d 1181 (explaining that this Court does not review unclear or undeveloped	13
arguments on appeal that would require this Court to guess at what a party’s	14
arguments might be).	15
CONCLUSION	16
{23} 	For the foregoing reasons, we affirm.	17
{24} 	IT IS SO ORDERED.	18
___________________________	19
BRIANA H. ZAMORA, Judge	20

1
WE CONCUR:
2
JENNIFER L. ATTREP, Judge
3 4
Megan P Duffy
MEGAN P. DUFFY, Julige
17

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