Search and Seizure Law Blog

On Friday, July 22, 2005, a jury in the United States District Court for the District of New Mexico awarded L.S., a nine year old child, $1.2 million in compensatory damages and $2 million in punitive damages. On May 8 2002, a substitute teacher molested L.S. and two of her first-grade classmates at Esperanza Elementary School in Farmington. L.S. suffered Post-Traumatic Stress Disorder as a result of the molestation. Sanchez v. Brokop, CV 04-134 (D.N.M., Magistrate Judge Leslie Smith, sitting by consent)

In a stunning reversal of the district court's entry of summary judgment for a social worker, the Tenth Circuit ruled that a teen's complaint alleging a two hour interrogation, laced with threats of arrest, in a school counselor's office was sufficient to defeat the social worker's defense of qualified immunity. Jones v. Hunt, 04-2108 (June 14, 2005). Jane Gagne of Albuquerque represented the plaintiff on appeal and continues to represent her in district court.

The highlight of the opinion is the Tenth Circuit's conclusion that a seizure occurred (assuming plaintiff's version of the facts) despite no orders to remain and no use of physical restraints.

In Tanberg v. Sholtis, 03-2231 (March 16, 2005), the Tenth Circuit affirmed the mid-trial dismissal of false arrest claims against an Albuquerque police officer. The opinion is notable for its qualified immunity analysis and the relevance, if any, of police department standard operating procedures (SOP's) to the qualified immunity analysis and to fourth amendment and state law claims for false arrest.

In Mimics, Inc. v. The Village of Angel Fire, 03-2214 (January 3, 2005), the Tenth Circuit denied qualified immunity to an officer for his intentional, warrantless entry into a commercial property for the alleged purpose of enforcing the state and local building code. The Tenth Circuit also permitted the plaintiffs to proceed with claims for First Amendment retaliation and Fourteenth Amendment Equal Protection, alleging they were "a class of one".

A Section 1983 civil rights plaintiff who raises a due process claim for the state’s warrantless removal of her children from the home faces huge obstacles of proof and an almost insurmountable legal obstacle in the qualified immunity defense. The State of New Mexico has wide discretion to remove children from their parents’ home, without court order, when they assert an emergency. In an opinion from the United States District Court of New Mexico, Magistrate Judge Karen Molzen detailed the law that stands in the way of a successful due process claim. Arrendo v. Locklear, et al., 03cv156 KBM/LCS (May 6, 2005, Docket # 110)(no link is available).

Most civil rights lawyers in New Mexico and elsewhere would answer the question posed with a resounding "No"! They would be correct. However, an intentional, non-malicious act that deprives a property or liberty right can lead to civil liability even when there was no intent to deprive the person of the right at issue. In Simkins v. Bruce, 04-3072, the jail defendants argued that their failure to forward legal mail to a transferred inmate was merely negligent. They argued that their negligent act did not give rise to a constitutional claim as they had no intent to deprive the plaintiff of his right of access to courts. The Tenth Circuit would have none of it and held that the defendant's conscious act of failing to forward legal mail gave rise to an inmate’s claim of denial of access to courts when his case was dismissed for his failure to respond to a summary judgment motion mailed to his old jail.

In Lawrence v. Reed, No.04-8030 (May 6, 2005), the Tenth Circuit denied qualified immunity in a Section 1983 claim for a police chief who towed cars from a property owner after consultation with the city attorney. The plaintiff claimed deprivation of Fourth Amendment rights for the seizure of some ninety vehicles from her “junk yard” under a local “derelict vehicle” ordinance. She also claimed deprivation of her Fourteenth Amendment rights because the ordinance provided no pre-deprivation or post-deprivation hearing. The police chief claimed qualified immunity under the “extraordinary circumstances” doctrine. The Tenth Circuit reversed summary judgment that the district court granted in favor of the police chief.

In an unpublished opinion, the Tenth Circuit affirmed a jury verdict in favor of an Albuquerque Police K-9 handler who used his dog to remove a motionless man from a car he had broken into. Gutierrez v. Hackett, 04-2104 (May 3, 2005). The plaintiff had filed suit claiming that the use of the dog to rouse him while he was sleeping in the car constituted excessive force under the Fourth Amendment. Despite the fact that the man remained motionless, the Tenth Circuit approved the jury's finding of reasonableness because Mr. Gutierrez hid his hands.

In Johnson v. Lindon City Corp., No. 04-4067 (April 25, 2005), the Tenth Circuit affirmed the dismissal of a civil rights complaint due to the plaintiffs' previous factual admission of guilt in the criminal proceeding. The Tenth Circuit determined that judicial estoppel barred the plaintiffs from taking a position in the civil litigation that was contrary to their acceptance of "Pleas in Abeyance" in the Utah criminal proceedings.

In a case that will bring a tear to the eye of the most cynical civil libertarian, the Tenth Circuit came down on the side of justice and freedom when it held that a Denver Police Officer deprived Luis Espinosa-Organista of his Fourth Amendment right to be free of unreasonable searches when the officer "frisked" Mr. Espinosa-Organista during the execution of a search warrant at the Denver Justice and Peace Committee (DJPC). Denver Justice Peace Committee v. City of Golden, 03-1470 (April 26, 2005). Judge Holloway, writing for the unnanimous three judge panel, held simply that "Espinosa had sufficiently alleged that he was frisked without reasonable suspicion that he was involved in any criminal activity or that he possessed a weapon."

In Gonzales v. Martinez, et al., No. 03-1348 (April 14, 2005), the Tenth Circuit clarified the evidence a plaintiff may use succesfully to prove a jail administrator's liability for a guard's sexual assault of a female inmate. The Tenth Circuit reversed a district court's entry of summary judgment in favor of a county sheriff after two women were sexually assaulted in the county jail. The Court held that a jury could find, based on the evidence presented, that the sheriff ignored a "substantial risk of serious harm".

On April 4, 2005, The Tenth Circuit Court of Appeals affirmed an award of attorney fees of close to $10,000 to an inmate who recovered $1.00 for a pre-incaceration deprivation of his fourth amendment right to be free of excessive force. In Robbins v. Larry Chronister, CV No. 02-3115, the Tenth Circuit, in a 2-1 opinion, affirmed an award of attorney fees above the PLRA cap, which is 150% of the judgment. 42 U.S.C. Sec. 1997e(d). The Court held that the application of the PLRA cap would be absurd. The opinion is available at kscourts.org/ca10