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Case 2:11-cv-00727-WJ-WPL Document 32 Filed 06/13/12 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO


MARIA ESPARZA,


Plaintiff,








v.

DOUGLAS BOWMAN, in his individual capacity,




Defendant.





No. CV-2011-00727 WPJ/WPL





PLAINTIFF’S RESPONSE TO DEFENDANT’S

MOTION TO DISMISS COMPLAINT ON QUALIFIED IMMUNITY

AND FOR SUMMARY JUDGMENT



Plaintiff Maria Esparza (hereinafter “Mrs. Esparza”), by and through her counsel of record,

MORRISSEY | LEWIS, LLC (Kari T. Morrissey and Jason J. Lewis) and Paige Duhamel Esq. submits

her response to Defendant’s Douglas Bowman’s motion to dismiss Plaintiff’s Complaint on the

grounds of qualified immunity and on the basis of Fed. R. Civ. Pro. 56.

INTRODUCTION



This controversy began when Defendant Bowman responded to an anonymous call

regarding a possible fight at 323 State Street in Texico, New Mexico. Dispatch provided no

information regarding the fight, including a description of the individuals alleged to be fighting, to

Defendant Bowman. Upon arriving at the scene, Defendant Bowman observed Mrs. Esparza

walking toward her car and get into the car. Defendant Bowman made contact with Mrs. Esparza

by ordering that she stop and submit to his questioning. Mrs. Esparza declined to respond to

Defendant Bowman’s attempts to detain her, and instead got into her car and drove away.

Defendant Bowman continued his investigation at 323 State Street and concluded there was no

fight underway, no evidence of any recently completed fight, and nothing to link Mrs. Esparza to a

fight. Instead of simply closing his investigation, Defendant Bowman began a campaign of



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unconstitutional conduct against Mrs. Esparza by obtaining a warrant for Mrs. Esparza’s arrest,

subjecting her to three years of criminal prosecution, and causing a chilling effect on Mrs.

Esparza’s First Amendment right to free speech.

Defendant Bowman’s arrest and subsequent prosecution of Mrs. Esparza was unlawful at

the time of her arrest and prosecution and in violation of Mrs. Esparza’s clearly established

constitutional rights. In a sworn affidavit written contemporaneously with the incident, Defendant

Bowman testifies that he sought only to speak to Mrs. Esparza, and made no mention that he

thought she had committed any crime – a fact too important to be left out had it been true. Indeed,

there was no basis for him to reasonably suspect she had committed a crime when he made contact

with her because he knew scant detail of the alleged incident – the alleged location was essentially

all he knew. Defendant Bowman’s post hoc justification many months or years later asserting that

Mrs. Esparza could have been a suspect because she was walking to her car as he was arriving on

scene is insufficient and inconsistent with his previous sworn testimony in the affidavit for arrest

warrant and a material issue of fact properly decided by a jury. Consequently, Defendant had no

reasonable suspicion to detain Mrs. Esparza, no probable cause to arrest Mrs. Esparza, and no

justification to call for her continued prosecution for any alleged violation of NMSA § 30-22-1.

Lastly, there is evidence that Defendant Bowman’s arrest of Mrs. Esparza was unlawfully

motivated by her voicing of prior complaints against Defendant Bowman to the mayor and city

council. Defendant Bowman caused a chilling effect on Mrs. Esparza’s ability voice further

concerns about her interactions with the Texico City Police Department. As a result, there are

sufficient and genuine issues of material facts to prohibit the dismissal of Plaintiff’s complaint.

RESPONSE TO STATEMENT OF UNDISPUTED FACTS

1.

Fact 1 is undisputed.



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2.

Fact 2 is disputed as incomplete. Defendant fails to note that the call was

anonymous.

3.

Fact 3 is disputed. Bowman testified that he observed that there were

approximately four people on the scene, aside from Mrs. Esparza when he arrived. Furthermore,

video-taped footage of the August 16, 2008 incident does not show Mrs. Esparza walking quickly

to her car upon Bowman’s arrival, but that she was walking at a normal pace and was already on

her way to her vehicle as Bowman stopped along side the road next to her family’s home.

4.

5.

Fact 4 is undisputed.

Fact 5 is disputed insofar as it implies that Mrs. Esparza understood that Officer

Bowman was yelling at her before she entered her vehicle. Mrs. Esparza has testified that she did

not understand Officer Bowman was approaching her until she was in her vehicle. (Exhibit A,

Deposition of Maria Esparza, p. 75, lines 3-5, p. 77, lines 6-18).

6.

Fact 6 is disputed in so far as it implies that Mrs. Esparza heard or understood

Bowman’s instructions as prohibiting her from leaving. Mrs. Esparza testified that she heard

Bowman’s request to talk to her, and that he yelled at her to respect him, but that she did not hear

him say that she couldn’t leave. (Exhibit A, Deposition of Maria Esparza, p. 78, lines 4-20).

7.

Fact 7 is disputed as incomplete. Bowman opened Mrs. Esparza’s driver’s side

door and stated that he would like to speak with her, but again, did not state the reason why he was

there and did not ask her to stop. (Exhibit A, Deposition of Maria Esparza, p. 79, lines 19-22).

8.

Fact 8 is disputed as incomplete. Mrs. Esparza stated that the reason why she shut

the car door after Bowman opened it was because she was scared of the officer. (Exhibit A,

Deposition of Maria Esparza, p. 80, lines 4-5).



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9.

Facts 9 and 10 as stated by Defendant are purposefully misleading. Mrs. Esparza

stated that she understood what Mr. Bowman was saying, but she testified that she didn’t

understand why he was yelling at her or what his instructions to her were. Mrs. Esparza also

indicated that she heard Bowman’s threats to arrest her and that she was afraid of the officer.

(Exhibit A, Deposition of Maria Esparza, p. 77, lines 6-18, p. 78, lines 4-7, p. 80, lines 4-5, p. 83,

lines 3-8).

10.

Fact 10 is disputed. Mrs. Esparza testified that Defendant had already begun

walking away when she drove off. Furthermore, Defendant never made any statements to the

effect that Mrs. Esparza almost ran over his foot on the videotaped footage of the incident.

(Exhibit A, Deposition of Maria Esparza, p. 79, lines 10-18).

11.

12.

Fact 12 is undisputed.

Fact 13 is disputed as incomplete. Mrs. Esparza testified that she called police

dispatch because there was a policeman from Texico at her home and that he wanted to talk to her

but that she couldn’t understand what he wanted and that she need to speak to someone who could

help her. (Exhibit A, Deposition of Maria Esparza, p. 83, lines 3-8).

13.

Fact 14 is disputed as incomplete and unverifiable. Mrs. Esparza testified that she

told Officer Salguero that she left because Bowman was “yelling and yelling” at her and that she

called the police because she did not understand what was happening. Officer Salguero responded

by stating that she could not do anything and that Mrs. Esparza had to just let Bowman yell at her.

Furthermore, Defendant never provided this written statement by Officer Salguero during her

criminal prosecution and that its provenance has not been verified. (Exhibit A, Deposition of

Maria Esparza, p. 86, lines 9-13).



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14.

Fact 14 is disputed. In the August 19, 2008 statement, Mrs. Esparza states that she

did not understand that Bowman was ordering her to stop, that he was scaring her by grabbing for

her arm, that she didn’t understand why Bowman was yelling at her, and that Officer Bowman’s

yelling had scared her mentally ill daughter. Mrs. Esparza does not say that she did not want to

speak to Bowman because she did not like him. Exhibit B, August 19, 2008 Statement.

15.

16.

Facts 16, 17, 18, 19, 20, 21, and 22 are undisputed.

Fact 23 is disputed. Mrs. Esparza testified that she called Texico City Hall on

August 16, 2008 to be placed on the City Council meeting agenda, but did not attend any further

City Council meetings because of the criminal charges against her. (Exhibit A, Deposition of

Maria Esparza, p. 53, lines 2-25).

SUPPLEMENTAL STATEMENT OF UNDISPUTED FACTS
At the time of the alleged incident, Mrs. Esparza was a 72 year-old grandmother.

17.

(Exhibit A, Deposition of Maria Esparza, p. 6, lines 20-21).

18. Mrs. Esparza first met Bowman prior to the incident alleged in the complaint when

she called Texico City Hall for assistance when she saw children in golf carts throwing

firecrackers at her dogs. (Exhibit A, Deposition of Maria Esparza, p. 43, lines 16-24).

19.

Instead of investigating Mrs. Esparza’s complaint, Bowman began yelling at Mrs.

Esparza and threatening to take her to court because her dogs were running loose. (Exhibit A,

Deposition of Maria Esparza, p. 43, line 25, p. 44, lines 1-4 and 8-11).

20. Mrs. Esparza decided to complain to Texico City Hall about Defendant Bowman

because he refused to investigate her complaint about children throwing firecrackers at her dogs

and because he yelled at her. (Exhibit A, Deposition of Maria Esparza, p. 57, lines 11-25, and p.

58, lines 1-10.)



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21.

At a meeting on July 22, 2008, the Texico City Council did not take any actions

against Bowman on the basis of Mrs. Esparza’s complaints. (Exhibit C, Deposition of Douglas

Bowman, p. 43, lines 8-14).

22.

After she filed her initial complaint with City Hall, Mrs. Esparza saw a Texico

police officer drive by her home in an old patrol unit and point out her home to another police

officer. (Exhibit A, Deposition of Maria Esparza, p. 58, lines 11-25, and p. 59, lines 1-16.)

23. Mrs. Esparza complained about this incident to the Texico City mayor prior to the

August 16, 2008 incident. The mayor stated that he would speak to the Texico City police about

her complaint. (Exhibit A, Deposition of Maria Esparza, p. 58, lines 11-18.)

24.

Defendant Bowman confirmed that the mayor relayed information to him about

Mrs. Esparza’s complaints regarding the firecracker incident. (Exhibit C, Deposition of Douglas

Bowman, p. 71, lines 5-9).

25.

On August 16, 2008, Mrs. Esparza testified that she arrived at 323 State Street in

Texico, the site of the incident that lead to Mrs. Esparza’s arrest, to pick up her husband so that

they could go to the store to buy a pipe. (Exhibit A, Deposition of Maria Esparza, p. 61, lines 6-9.)

26. Mrs. Esparza testified that she had only been at 323 State Street for approximately

15 to 20 minutes before Bowman arrived, and that she did not see anyone yelling or fighting while

she was at this address. (Exhibit A, Deposition of Maria Esparza, p. 64, lines 11-24.)

27. Mrs. Esparza’s youngest daughter, Juanita, was sitting in the backseat of Mrs.

Esparza’s car when the incident with Bowman on August 16, 2008 occurred. (Exhibit A,

Deposition of Maria Esparza, p. 61, lines 15-17.)



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28.

Bowman testified that the call dispatching him to 323 State Street did not include

any identifying information about the alleged suspects. (Exhibit C, Deposition of Douglas

Bowman, p. 78, lines 11-13).

29. When Bowman arrived on scene, he did not see anyone engaged in any physical

confrontation. (Exhibit C, Deposition of Douglas Bowman, p. 86, lines 5-8).

30.

Likewise, Bowman testified that he did not notice anyone yelling or talking when

he arrived on scene other than Mrs. Esparza. (Exhibit C, Deposition of Douglas Bowman, p. 86,

lines 24-25, p. 87, lines 1-3).

31.

Juanita has cerebral palsy, and Mrs. Esparza has testified that Bowman’s yelling

and knocking on the car door during the August 16, 2008 incident scared Juanita. (Exhibit A,

Deposition of Maria Esparza, p. 7, lines 16-23.)

32.

Bowman made no arrests at 323 State Street because he could find no evidence that

any battery or other crimes had been committed. (Exhibit C, Deposition of Douglas Bowman, p.

100, lines 23-25, p. 101, lines 1-4).

33.

Officer Gilbert Salguero was dispatched to Mrs. Esparza’s home at 414 State Street

in Texico mere minutes after she left 323 State Street. (See Exhibit D, August 16, 2008 Dispatch

Report).

34.

Bowman has stated that he spoke to Officer Salguero shortly after Salguero

finished speaking with Mrs. Esparza at her home. (Exhibit C, Deposition of Douglas Bowman, p.

101, lines 20-25).

35. Mrs. Esparza testified that she called someone in the mayor’s office about making

another complaint against Defendant Bowman and possibly being placed on the City Council

Agenda for the August city council meeting. She stated that she felt that she later could not go to



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any city council meetings to complain about the incident because of the pending criminal charges.

(Exhibit A, Deposition of Maria Esparza, p. 53, lines 2-25.)

36.

Bowman has been in law enforcement, with only brief gaps in service, since

approximately 1997. (Exhibit C, Deposition of Douglas Bowman, p. 28, lines 3-9).

37.

The two magistrates who oversee warrant applications for the Texico City Police

Department, Judge Rick Hollis and Duane Castleberry, are non-attorney magistrate judges.

(Exhibit C, Deposition of Douglas Bowman, p. 26, lines 1-15).

38.

Bowman has testified that neither he nor any of his subordinate officers, either in

his time with the Texico City Police Department or with the Clovis Police Department have ever

had a magistrate judge reject their application for a warrant. (Exhibit C, Deposition of Douglas

Bowman, p. 26, lines 18-23).

39.

Likewise, Bowman has testified that only once during his law enforcement career

has a district attorney requested that he include more information on his affidavit for a warrant. At

no other time has a district attorney withheld approval of his request for a warrant. (Exhibit C,

Deposition of Douglas Bowman, p. 23, lines 19-25, p. 24, lines 1-4).

40.

Bowman also testified that none of his subordinates have had any problems getting

their warrant requests approved by the local district attorneys. (Exhibit C, Deposition of Douglas

Bowman, p. 24, lines 7-9).

41.

On his affidavit for arrest warrant, Bowman solely states that Mrs. Esparza could

have been a witness to the incident alleged in the anonymous 911 call. (Exhibit E, Affidavit for

Arrest Warrant).







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ARGUMENT

A. Summary Judgment Standard

Summary judgment is only appropriate when there is no genuine issue of material fact.

Fed. R. Civ. P. 56(c). When applying this standard, the court views the evidence and draws

reasonable inferences in the light most favorable to the nonmoving party. Sanders v. Sw. Bell Tel.,

L.P., 544 F.3d 1101, 1105 (10th Cir. 2008).



Defendant Fails to Show that Plaintiff Has Alleged No Genuine Issue of

B.
Material Fact or Qualified Immunity in Support of Her Wrongful Arrest Claim

1.

Defendant Did Not Have Reasonable Suspicion to Detain Plaintiff and
Order Her Arrest Pursuant to NMSA 1978, § 30-22-1.


Both state and federal law prohibit Defendant Bowman’s conduct in arresting Mrs. Esparza

for obstructing or evading a police officer pursuant to NMSA 1978, § 30-22-1 and this law was

clearly established at the time of Defendant Bowman’s conduct. The Supreme Court in Terry v.

Ohio, 392 U.S. 1 (1968) ruled that “no right is held more sacred, or is more carefully guarded, by

the common law, than the right of every individual to the possession and control of his own

person, free from all restraint or interference of others, unless by clear and unquestionable

authority of law.” Id. at 9. More specifically, in Florida v. Royer, the Court cited Terry v. Ohio in

stating that when a police officer approaches a person without justification, “the person

approached…need not answer any questions put to him; indeed, he may decline to listen to the

questions at all and may go on his way.” Florida, 460 U.S. 491, 498.

An investigative detention is a Fourth Amendment seizure of limited scope and duration

and requiring reasonable suspicion of criminal activity. Romero v. Story, 672 F.3d 880, 886 (10th

Cir. 2012); Lundstrom v. Romero, 616 F.3d 1108, 1120 (10th Cir.2010). A Fourth Amendment

seizure occurs where, considering all the circumstances, a reasonable person would not feel free to



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leave or disregard the contact. Lundstrom, 616 F.3d at 1119 (10th Cir. 2010); See Petersen v.

Farnsworth, 371 F.3d 1219, 1221–22 (10th Cir. 2004). An officer who “stops” and briefly detains

a person for questioning “must be able to point to specific and articulable facts which, taken

together with rational inferences from those facts, reasonably warrant that intrusion.” Romero, 672

F.3d at 886 (10th Cir. 2012); United States v. Davis, 94 F.3d 1465, 1468 (10th Cir.1996) (citing

Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Reasonable suspicion does

not rise to the level of probable cause, but “it does demand something more than an inchoate and

unparticularized suspicion or hunch.” Id. (internal quotations omitted).

While the court views the totality of the circumstances to determine whether the detaining

officer had a particularized and objective basis for suspecting legal wrongdoing, an officer’s

detention of an individual must be justified at its inception. Lundstrom, 616 F.3d at 1120 (10th

Cir. 2010); citing United States v. Cervine, 347 F.3d 865, 868 (10th Cir. 2003); Cortez v.

McCauley, 478 F.3d 1108, 1123 (10th Cir. 2007) (emphasis added). Likewise, a police officer

cannot legally detain an individual simply due to an allegation that criminal activity is afoot.

United States v. Fisher, 597 F.3d 1156, 1158-59 (10th Cir. 2010); United States v. Goodrich, 450

F.3d 552, 560 (3d Cir. 2006). There must be some reasonable belief that the particular individual

detained committed an alleged crime. Fisher, 597 F.3d at 1158-59; Goodrich, 450 F.3d at 560.

Several cases give guidance to this Court in determining whether Defendant Bowman had

reasonable suspicion to detain Mrs. Esparza. In U.S. v. Davis, the Tenth Circuit held that officers

did not have sufficiently reasonable suspicion to detain an individual who had a known criminal

history and gang association, who had arrived in a vehicle outside of a “juice joint” or address

known for criminal activity, and who made eye contact with the officers before breaking it and

walking away, and who did not stop and take his hands out of his pockets and speak to officers



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when ordered to do so. Id., 94 F.3d 1465, 1467 (10th Cir. 1996). The Tenth Circuit rejected the

officers’ argument that Mr. Davis’s known criminal history and his arrival at high crime address

gave them reasonable suspicion to detain Mr. Davis. Id. at 1468. Likewise and importantly, the

Court rejected the officers’ argument that Mr. Davis’s decision to walk away from them and

refuse to stop when ordered was adequate reasoning to believe Mr. Davis could be involved in

criminal activity. Id. at 1468-1469. In making this finding, the Tenth Circuit reinforced the

Supreme Court’s holding in Florida v. Royer, 460 U.S. 491, 497-98, stating that while an officer

does not violate the Fourth Amendment simply by approaching an individual in a public place and

asking him questions, the individual “need not answer any question put to him; indeed, he may

decline to listen to the questions at all and may go on his way.” Id. quoting Royer. The court found

that Mr. Davis’s detention could not be justified by his refusal to stop because a person may not be

detained, even momentarily, without reasonable or objective grounds for doing so, and that a

person’s refusal to listen or answer does not, without more, furnish those grounds. Id.

These cases strike a remarkable resemblance to the circumstances of Mrs. Esparza’s

encounter with Defendant Bowman. As in the Davis case, Mrs. Esparza refused to subject herself

to Defendant Bowman’s questioning by leaving the scene, thereby exercising her constitutional

rights to be free from unwanted seizure. As did the officers in Davis, Defendant Bowman later

attempted to cast Mrs. Esparza’s lawful conduct of refusing to stop for his questioning into a

criminal act. The Tenth Circuit summarily dismissed those officer’s justifications by ruling the

officers exceeded the plaintiff’s constitutional boundaries. Given that this case existed at the time

of Mrs. Esparza’s arrest, Mrs. Esparza respectfully urges this Court to similarly find Defendant

Bowman’s conduct unlawful and deny his motion for summary judgment and for qualified

immunity.



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Furthermore, while decided by the Tenth Circuit after Mrs. Esparza’s arrest, the analysis

adopted by the court in Romero v. Story, 672 F.3d 880 (10th Cir. 2010) is helpful. In Romero, the

court distinguished between the facts in U.S. v. Davis and U.S. v. Sanchez, 519 F.3d 1208, 1215

(10th Cir. 2008), to which Defendant cites, by stating that a lack of a positive, direct information

that a particular assailant committed a crime, unclear evidence about the departure of vehicles

leaving an alleged crime scene, and no other corroboration of an anonymous tip about alleged

criminal activity counseled against a finding of reasonable suspicion sufficient to warrant the

detention of an individual. Romero, 672 F.3d at 887. In Romero, the court concluded, relying on

U.S. v. Davis, that Mr. Romero’s presence in an area where a 911 call alleged criminal activity

took place was insufficient to provide reasonable suspicion for law enforcement officers to detain

Mr. Romero. Id. at 888.

The New Mexico Supreme Court has also ruled on the issue of whether an individual may

decline to be questioned by a police officer where the police officer lacks reasonable suspicion to

detain them as a suspect. In State v. Gutierrez, 142 N.M. 1, (N.M. 2007), the New Mexico

Supreme Court held that “a person being detained may decline to answer questions and is under

no obligations to respond.” Citing Kolender v. Lawson, 461 U.S. 352 (1983); Terry v. Ohio, 392

U.S. 1 (1968). New Mexico’s Supreme Court, likewise, went on to hold that “a person has the

constitutional right to walk away from an officer who lacks reasonable suspicion and simply wants

to question the person.” Id.

The New Mexico Court of Appeals construed what constituted a lawful order or “lawful

discharge of his duties,” for the purposes of an arrest under NMSA 1978, § 30-22-1. In State v.

Frazier, 88 N.M. 103, 105, 537 P.2d 711, 713 (Ct. App. 1975), two police officers intervened in a

non-violent civil dispute between a motel manager and a motel guest. Id. When the guest ran from



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the motel, one of the officers chased and stopped the guest, demanding that the guest return to the

motel with him. Id. The guest refused to accompany the officer, and when the officer stopped the

guest the second time, the guest struck the officer. A second officer arrived and the two officers

restrained the defendant and placed her under arrest for resisting a peace officer. Id. The court

concluded that the first officer “did not have any general or specific grounds of suspicion that a

criminal offense had been committed [by the defendant]” and therefore the officer had “exceeded

his authority” when he detained the guest. Id. Likewise, the Tenth Circuit has analyzed NMSA

1978, § 30-22-1 and concluded that an officer must have probable cause or reasonable suspicion of

a crime prior to the flight in order to arrest a person for flight or evasion. Romero v. Story, 672

F.3d 880, 889 (10th Cir. 2012), citing Gutierrez, 162 P.3d at 166. Similarly, the Tenth Circuit has

found that a hunch that an individual may be able to provide information related to a criminal

investigation is insufficient to support an arrest for violation of NMSA 1978, § 30-22-1 when the

individual declines to speak further with officers. Manzanares v. Higdon, 575 F.3d 1135, 1144

(10th Cir. 2009).

Defendant Bowman cannot lawfully support his contention that he believed he had

reasonable suspicion to detain and later arrest Mrs. Esparza. Defendant Bowman responded to an

anonymous 911 call regarding a yelling and possible fighting by six people. The call did not

describe the people involved in any alleged fighting. Bowman has testified that when he arrived

on scene, he saw no physical altercation, nor was anyone yelling at each other, although he stated

that he could hear Mrs. Esparza say something as she was walking to her vehicle. Consequently,

any suspicion that he had that Mrs. Esparza, in particular, could have been involved in a public

disturbance or fighting can only be said to rise to the level of a hunch, which the courts have

clearly established is insufficient to form reasonable suspicion for an investigative detention.



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Defendant Bowman cannot maintain in law or fact that he had reasonable suspicion that

Mrs. Esparza had committed a crime from the first instance he sought to detain her. Videotaped

footage of the incident shows that Mrs. Esparza was walking calmly to her vehicle as Bowman

was arriving at 323 State Street, and Mrs. Esparza has testified that her daughter was already in the

car because they were going to the store. There is no indication that Mrs. Esparza was attempting

to flee the scene as Bowman pulled up next to her family’s home. Analyzed under the rubric of

U.S. v. Davis, an officer cannot articulate reasonable suspicion to detain an individual who simply

stands accused of walking away from him, even when ordered to stop. Likewise, U.S. v. Davis

counsels that Bowman could not have formed sufficient reasonable suspicion to detain Mrs.

Esparza simply because she was at the location of possible criminal activity, and there was no

particular indication that she, herself, was engaged in criminal conduct. Furthermore, Bowman

admitted in his affidavit for arrest warrant that he initially sought to speak to her only as a witness;

his justification for the basis of his reasonable suspicion that this 70-plus year-old woman could

have been engaged in fighting was only conjured up after the fact during the course of litigation.

Even if Defendant Bowman sincerely suspected Mrs. Esparza of criminal activity at the time of

their encounter, his articulated reasons fail under Davis. Defendant Bowman simply lacked the

requisite factual basis to form a reasonable suspicion that Mrs. Esparza was committing any crime.

As a result of any lack of reasonable suspicion by Bowman, it was well within Mrs. Esparza’s

Fourth Amendment right to refuse to speak to Bowman and to leave the scene.

If Mrs. Esparza was not free to leave the scene, and her leaving was a violation of NMSA

1978, § 30-22-1, then Bowman was required to have had reasonable suspicion that she had

committed or was in the commission of a crime to detain her. Again, New Mexico Courts and the

Tenth Circuit have long interpreted NMSA 1978, § 30-22-1 to require that an officer suspect an



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individual had committed a crime prior to making an arrest for resisting or evading an officer.

Because Defendant had no initial reasonable suspicion to believe Mrs. Esparza committed any

crime, Defendant attempts to confuse the issue by making hay of Mrs. Esparza’s ability to

understand his request that she stop and speak with him. As Mrs. Esparza has stated, while she

understood that Bowman wanted to speak with her, she could not comprehend why he wanted to

speak with her because she had not engaged in any wrongdoing nor was there any wrongdoing

afoot at the house. From Mrs. Esparza’s perspective, Bowman arrived on scene out of the blue,

yelling at her, threatening to arrest her, and scaring her and her daughter without any explanation.

Furthermore, it is undisputed that Mrs. Esparza called and spoke to the police mere moments after

leaving the scene. Under State v. Frazier, these facts, as alleged, do not support Mrs. Esparza’s

arrest for evasion of a police officer violation of NMSA 1978, § 30-22-1, let alone an arrest two

days after it became clear that no underlying criminal activity had occurred. Additionally,

Bowman did not articulate any community care-taking desire to protect Mrs. Esparza from harm

by seeking to detain her; he has repeatedly stated that his reasons for requesting that she speak to

him were investigatory. Consequently, Defendant Bowman’s motion for summary judgment

should be denied as a matter of law.



2.

Defendant Is Not Entitled to Qualified Immunity

A constitutional right is clearly established when, at the time of the alleged violation, the

contours of the right were sufficiently clear that a reasonable official would understand that his

actions violate that right. Swanson v. Town of Mountain View, 577 F.3d 1196, 1200 (10th Cir.

2009). A plaintiff must do more than identify in the abstract a clearly established right and allege

that the defendant has violated it, however, a plaintiff does not have to present a case with an

identical factual situation, the plaintiff must show legal authority making it “apparent that in the



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light of pre-existing law a reasonable official would have known that the conduct in question

violated the constitutional right at issue.” Id. (internal quotation marks and ellipsis omitted). In

determining whether a right was clearly established, courts look for Supreme Court or Tenth

Circuit precedent on point or clearly established weight of authority from other courts finding the

law to be as the plaintiff maintains. See id.

The fact that a magistrate has authorized a warrant for a search or seizure does not render a

police officer’s conduct in an alleged violation of an individual’s Fourth Amendment rights

objectively reasonable. Messerschmidt v. Millender, 132 S. Ct. 1235, 1245, 182 L. Ed. 2d 47

(2012). Any argument that Messerschmidt has done away with the exception allowing suits to

move forward where it is obvious that no reasonably competent officer would have concluded that

a warrant should issue is false. Id. Messerschmidt reiterated the rule that the shield of authority

conferred by the warrant will be lost if the warrant was based on an affidavit so lacking in indicia

of probable cause as to render official belief in its existence entirely unreasonable. Id.

Furthermore, cases decided since Messerschmidt have found that officers were not entitled to

qualified immunity where affidavits for arrest warrants lacked probable cause. See Merch. v.

Bauer, 677 F.3d 656, 665 (4th Cir. 2012).

The Tenth Circuit has also required that officers seeking warrants must have an objectively

reasonable belief of probable cause to conduct a search or seizure to justify the warrant. See

Poolaw v. Marcantel, 565 F.3d 721, 734 (10th Cir. 2009). In Poolaw v. Mercantel, the Court

restated the importance of independent accountability for law enforcement officers based on the

Supreme Court’s findings in Malley v. Briggs, 475 U.S. 335, that

It is true that in an ideal system an unreasonable request for a warrant would be harmless,
because no judge would approve it. But ours is not an ideal system, and it is possible that a
magistrate, working under docket pressures, will fail to perform as a magistrate should. We



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find it reasonable to require the officer applying for the warrant to minimize this danger by
exercising reasonable professional judgment.



Poolaw, 565 F.3d at 734; Malley, 475 U.S. at 345-346. Consequently, the Tenth Circuit held that it

is not conclusive that a law trained judge found the affidavit sufficient to establish probable cause

and issued the warrant, as the issuance of the warrant simply does not control the outcome of the

court’s inquiry into the officers’ exercise of their own professional judgment. Poolaw v.

Marcantel, 565 F.3d at 735. Other circuits have similarly held that it is objectively unreasonable

for an officer to rely on an arrest warrant where the officer has alleged no probable cause to

believe that an individual committed all of the elements of a suspected crime. Merchant, 677 F.3d

662-663.



In Poolaw, the Court took to task law enforcement officers who did not allege sufficient

probable cause in an affidavit for a warrant to search the home of individuals related to a murder

suspect. Poolaw, 565 F.3d at 735-765. Even though the officers made allegations that a suspected

murderer occasionally resided in plaintiffs’ home and that the suspect’s wife had stayed with the

plaintiffs during the time he was on the run, the Court found that these facts were insufficient to

allege probable cause to conduct the search. Id. at 730-731. Importantly, the Court reviewed

whether the officers’ affidavit for the search warrant alleged facts linking evidence to the

plaintiffs’ home or whether the affidavit simply drew conclusions that evidence might exist based

on speculation regarding the suspect’s alleged conduct. Id.



While courts have typically granted deference to a magistrate’s determination of probable

cause, this deference is not boundless. United States v. Leon, 468 U.S. 897, 914, (1984). A

magistrate issuing warrants must perform his duties in a neutral and dethatched manner and must

not merely serve as a rubber stamp for the police. Id. To that end, the courts have required that



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magistrates demand to see sufficient evidence presented in a warrant to determine probable cause

and not merely ratify the bare conclusions of others. Id. at 915.



Courts have been additionally suspicious of the reasonable belief of officers in the

reliability of a warrant where there is evidence that an officer has omitted potentially relevant or

exculpatory information from a warrant affidavit. See Bruning v. Pixler, 949 F.2d 352, 356 (10th

Cir. 1991). While Harlow v. Fitzgerald, 457 U.S. 800 (1982), adopted an objective standard for

analyzing whether an officer acted lawfully for the purposes of determining qualified immunity, a

court may make a subjective inquiry of an officer’s intent if a plaintiff’s claim alleges that the

officer’s motive or purpose was improper. Bruning, 949 F.2d at 356. As a result, the Tenth Circuit

has found that an officer cannot be granted qualified immunity for obtaining a warrant and that a

clear violation of an individual’s Fourth Amendment rights is established where an officer

“knowingly or recklessly omit from an arrest affidavit information which, if included, would have

vitiated probable cause.” Id. at 357.



The law regarding reasonable suspicion and arrests for evasion of police officers pursuant

to NMSA 1978, § 30-22-1 has long been established and required that Bowman articulate a

reasonable belief that Mrs. Esparza had committed a crime prior to allegedly resisting or evading a

police officer. The warrant for Mrs. Esparza’s arrest states no such facts, and, additionally, only

maintains that Mrs. Esparza could have been a witness to the alleged disturbance. As a result and

in accordance with the facts of and courts’ analyses of reasonable suspicion and probable cause for

arrest in U.S. v. Davis, State v. Frazier, Romero v. Story, and Manzanares v. Higdon, Defendant

Bowman’s affidavit for the warrant for Mrs. Esparza’s arrest was so lacking in indicia of probable

cause as to render official belief in its existence entirely unreasonable. See Messerschmidt v.

Millender, 132 S. Ct. 1235, 1245, 182 L. Ed. 2d 47 (2012). Consequently, neither Bowman nor



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any reasonable officer could have believed that there was probable cause to arrest Mrs. Esparza for

resisting or evading a police officer pursuant to NMSA 1978, § 30-22-1; there was no evidence

that Mrs. Esparza committed any underlying crime and she was only alleged to have been a

potential witness to a public disturbance. Additionally, even though Bowman has later stated that

Mrs. Esparza could have been a suspect and that he had intended to include information as to this

belief in the warrant, this fact does not cure the deficiencies in the warrant presented to the

magistrate judge. See Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 565 n. 8, 91

S.Ct. 1031, 28 L.Ed.2d 306 (1971) (“[A]n otherwise insufficient affidavit cannot be rehabilitated

by testimony concerning information possessed by the affiant when he sought the warrant but not

disclosed to the issuing magistrate.... A contrary rule would, of course, render the [legal process]

requirements of the Fourth Amendment meaningless.”).



Through Bowman’s testimony that neither he nor any of his subordinate officers during his

approximately ten-year law enforcement career had ever had a warrant application rejected by a

magistrate judge is substantial evidence that the non-attorney magistrates serving Curry County

have lost any neutral and detached perspective in issuing warrants; there appears to be a pattern

and practice of magistrate rubber-stamping police officers’ requests to search and arrest the

County’s citizenry. Likewise, district attorney approval of applications for warrants is rendered

meaningless where there is evidence, as there is here, that district attorneys practice across the

board approval of any warrant application sent their way. While there is an assumption that an

officer’s actions taken after obtaining a warrant are objectively reasonable where the officer has

obtained prior DA and magistrate approval, this cannot be the case where there is such staggering

proof that approval for warrants is so freely granted without more searching review of probable

cause to do so. Consequently, the warrant approval practices of Curry County strip Bowman of



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any defense that he’s absolved of liability on his good faith engagement in the warrant approval

process.



Notably, Bowman’s affidavit for Mrs. Esparza’s arrest omits any mention that she

immediately called the police and spoke to another law enforcement officer after leaving the scene

on August 16, 2008. As a result, the bare facts pled in the warrant were insufficient to place the

magistrate on notice that Mrs. Esparza left the scene, not out of any desire to flee from her own

criminal wrongdoing, but because she was confused by Bowman’s approach and afraid of the

officer. Officer Bowman spoke to Officer Salguero shortly after he spoke with Mrs. Esparza, and

he was certainly aware of the reasons for her leaving the scene and immediate request for police

assistance at the time of his application for the warrant. Likewise the warrant failed to mention

that Bowman did not uncover any evidence of a public disturbance or fight and made no arrest on

these charges at the scene or anytime afterward. The omission of these potentially exculpatory

facts, further eviscerates any argument that Bowman reasonably relied upon the magistrate’s

determination of probable cause to approve the warrant for Mrs. Esparza’s arrest.



Given the history of discord between Mrs. Esparza and Defendant Bowman, as well as the

evidence contained on the videotaped footage of the incident that shows Bowman gloating to Mrs.

Esparza’s family members that he was going to obtain a warrant to arrest Mrs. Esparza, there is

strong evidence to conclude that Bowman sought a warrant to arrest Mrs. Esparza for improper

purposes, without any probable cause to do so. Pursuant to Bruning v. Pixler, the court should be

counseled against finding that Bowman acted reasonably in securing and relying upon a warrant

where there is evidence that he sought and obtained such an authorization to arrest Mrs. Esparza

for retaliatory purposes.



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Mrs. Esparza’s constitutional rights to be free from unreasonable seizure were clearly

established at the time of the incident. Defendant Bowman was clearly on judicial notice that Mrs.

Esparza’s simple action of walking to her vehicle upon his arrival at the scene did not constitute

reasonable suspicion that she had committed a crime sufficient to detain her. Without reasonable

suspicion that Mrs. Esparza had committed a criminal act prior to leaving the scene, he could not

arrest her for evading a police officer pursuant to NMSA 1978, § 30-22-1. The facts, as stated in

Bowman’s affidavit for arrest warrant, contained no indicia of probable cause to believe Mrs.

Esparza was in violation of NMSA 1978, § 30-22-1, and, as a result, no reasonable officer could

have objectively believed that the warrant was valid if exercising his independent and experienced

knowledge of the law as a law enforcement officer. Furthermore, the additional evidence that

Bowman omitted potentially exculpatory information from his application for a warrant along

with signs of a retaliatory motive for the arrest argue against granting Bowman qualified immunity

and summary judgment based on any allegedly reasonable mistake in obtaining a warrant to arrest

the Mrs. Esparza. Consequently, Mrs. Esparza has alleged sufficient and genuine material facts to

prevent summary judgment and prohibit a ruling of qualified immunity for Bowman for Mrs.

Esparza’s arrest. Just as the court denied the defendant’s qualified immunity claims for the arrest

of an alleged witness in Manzanares v. Higdon, so should the court make the same determination

here.

C. Plaintiff Has Dismissed Her Malicious Prosecution Claim



Mrs. Esparza intends to dismiss her malicious prosecution claim upon receiving

concurrence from opposing counsel, and therefore provides no response on that issue.

D.
Defendant Fails to Meet the Burden of Showing that Plaintiff Has Alleged No
Genuine Issue of Material Fact or Qualified Immunity in Support of Her First
Amendment Claim




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As Defendant correctly states, to sustain a charge of First Amendment retaliation for her

August 18, 2008 arrest, Mrs. Esparza must show (i) that she was engaged in constitutionally

protected activity, (ii) that Defendant’s action caused her to suffer an injury that would chill a

person of ordinary firmness from continuing to engage in that activity; and (iii) that defendant’s

action was substantially motivated as a response to plaintiff’s exercise of her First Amendment

free speech rights. Becker v. Kroll, 494 F.3d 904, 925 (10th Cir. 2007), citing Worrell v. Henry,

219 F.3d 1197, 1212 (10th Cir. 2000). Mrs. Esparza states that she has met these elements of her

claim and she has proved that Defendant lacked any probable cause to effectuate her arrest. See

Becker, supra, 494 F.3d at 925.

The Tenth Circuit has found that direct evidence of First Amendment retaliation by

governmental officers is rarely available and frequently must be inferred by the facts alleged.

Meyer v. Bd. of County Com'rs of Harper County, Okla., 482 F.3d 1232, 1244 (10th Cir. 2007).

The courts, therefore, must consider reasonable inferences available from the evidence. Id.

Furthermore, the Tenth Circuit has held that “[a]ny form of official retaliation for exercising one's

freedom of speech, including prosecution, threatened prosecution, bad faith investigation, and

legal harassment, constitutes an infringement of that freedom.” Worrell v. Henry, 219 F.3d 1197,

1212 (10th Cir. 2000).

Mrs. Esparza was engaged in constitutionally protected activity in voicing complaints

against Bowman to the City Council and mayor. Mrs. Esparza has testified, and Defendant does

not dispute, that she lodged a complaint against him at a City Counsel meeting on July 22, 2008,

for failure to investigate a complaint that children were throwing firecrackers at her dogs.

Likewise, Defendant does not dispute that Texico’s mayor relayed information about this

complaint to him prior to Mrs. Esparza’s appearance at the July 22, 2008 City Council meeting.



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After making a complaint at the July 22nd City Council meeting, Mrs. Esparza began to

notice Texico City police cars drive by her home, and, on one occasion, saw Defendant pointing

out her home to another, African American police officer who appeared to be from another

jurisdiction. Just prior to the August 16, 2008 incident, Mrs. Esparza again complained to the

mayor about what she felt was harassment by Defendant Bowman and his subordinate officers.

Mrs. Esparza has stated that the mayor told her that he would speak to Bowman about these

allegations. (Exhibit A, Deposition of Maria Esparza, p. 58, lines 14-18.)

Mrs. Esparza has stated that after the August 16th incident, she again spoke to someone in

City Hall about making a complaint against Bowman. Given that Bowman learned from the mayor

on two prior occasions of Mrs. Esparza’s complaints, it is not irrational to draw the inference that

the mayor again spoke to Bowman about Mrs. Esparza’s complaint regarding the August 16th

incident, thus formulating the impetus for Bowman to seek a warrant for Mrs. Esparza’s arrest.

Furthermore, regardless of whether Bowman knew of Mrs. Esparza’s complaint regarding the

August 16th incident, there is sufficient evidence to suggest that her complaints in July and early

August 2008 were a large and motivating factor in Bowman’s desire to seek her arrest. From the

videotaped footage of the incident on August 16, 2008, Bowman speaks as if he is relishing the

opportunity that he thought had presented itself to (wrongfully) arrest Mrs. Esparza. Had Bowman

not been improperly motivated by his desire to retaliate against Mrs. Esparza, he perhaps would

have come to the realization that he did not have probable cause for her arrest.

The facts, as alleged, support a reasonable inference that Bowman’s act of arresting Mrs.

Esparza on August 18, 2008, was retaliatory and in violation of Mrs. Esparza’s First Amendment

rights. Furthermore, such prohibitions against such retaliatory conduct were sufficiently

established prior to these acts to deny Defendant’s qualified immunity claim.



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Additionally, Mrs. Esparza contests Defendant’s contention any discussion of events prior

to August 16, 2008 is time barred by the statute of limitations. Mrs. Esparza is not alleging that

these events give rise to Mrs. Esparza’s cause of action, but that they provide background for the

causes of action relating to Mrs. Esparza’s arrest on August 18, 2008.

For the reasons stated herein, Mrs. Esparza respectfully requests the Court enter an order

denying Defendant Bowman’s motion for summary judgment on all remaining claims.





































































Respectfully Submitted,

















By: Paige Duhamel, Esq.
Paige Duhamel, Esq.
2501 Rio Grande Blvd. NW, Suite B
Albuquerque, NM 87104
(505) 244-0950

MORRISSEY | LEWIS, LLC

By: Jason J. Lewis, Esq.
Jason J. Lewis, Esq.
2501 Rio Grande Blvd. NW, Suite B
Albuquerque, NM 87104
(505) 244-0950



I hereby certify that a true copy of the foregoing pleading was filed with the Court’s CM/ECF
filing system and served via CM/ECF on opposing counsel on June 13, 2012 as follows:

Lisa Entress Pullen
Lawrence H. Hill
Attorneys for Defendant Douglas Bowman
[email protected]
[email protected]


/s/ Paige Duhamel
PAIGE DUHAMEL





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