Hernandez v. Parker

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: February 1, 2022
No. A-1-CA-38635
ELSA HERNANDEZ, as Personal
Representative of the Wrongful
Death Claim of Irisema Hernandez,
Deceased,
Plaintiff-Appellant,
v.
MALIN PARKER, individually,
ROOSEVELT COUNTY SHERIFF’S
DEPARTMENT, and ROOSEVELT
COUNTY BOARD OF COUNTY
COMMISSIONERS,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
Fred T. Van Soelen, District Judge
Eric D. Dixon
Portales, NM
for Appellant
Macke Law & Policy, LLC
Daniel J. Macke
Albuquerque, NM
for Appellees
OPINION
WRAY, Judge.
{1} In this appeal, we are asked to consider whether collateral estoppel precludes
state court litigation arising under the New Mexico Tort Claims Act, NMSA 1978,
§§ 41-4-1 to -27 (1976, as amended through 2020) (TCA), when a federal district
court has dismissed 42 U.S.C. § 1983 claims because the facts did not establish that
a law enforcement officer used excessive force to effectuate an arrest in violation of
the Fourth Amendment to the United States Constitution. Concluding it does not, we
reverse.
BACKGROUND
{2} According to the complaint filed in the state district court, law enforcement
officers observed Irisema Hernandez’s car, a white Lincoln, in a motel parking lot.
Incorrectly believing that Irisema was violating her conditions of release by staying
at the motel, Defendant Sheriff Malin Parker used his unmarked vehicle to block the
Lincoln and prevent it from leaving. Sheriff Parker, wearing a black hoodie, and
another officer, who was in uniform, approached the Lincoln with guns drawn. With
Irisema in the passenger seat, another individual (Driver) pulled the Lincoln out of
the parking lot, striking Sheriff Parker in the process. Sheriff Parker returned to his
unmarked vehicle and pursued for five minutes, at speeds between 80 and 90 miles
per hour, in the rain, and on two-lane rural roads. Ultimately, Irisema’s vehicle was
forced off the road, possibly by contact from Sheriff Parker’s vehicle, and hit a tree.
Irisema died from injuries caused by the collision.
{3} Plaintiff, as the personal representative of Irisema’s wrongful death Estate,
brought an action in the United States District Court for the District of New Mexico
(federal court) against Sheriff Parker, the Roosevelt County Board of County
Commissioners, and the Roosevelt County Sheriff’s Department (collectively,
Defendants). Plaintiff alleged deprivations of Irisema’s rights under the Fourth and
Fourteenth Amendments through § 1983, as well as causes of action under the TCA.
Sheriff Parker asserted qualified immunity as a defense to Plaintiff’s § 1983 claims.
The federal court granted Sheriff Parker’s motion, dismissed Plaintiff’s federal
claims against all Defendants, and declined to exercise supplemental jurisdiction
over Plaintiff’s state law claims.
{4} Shortly thereafter, Plaintiff filed a complaint in the state district court against
the same Defendants and alleged claims for negligence and aggravated assault and
battery under the TCA. Defendants moved to dismiss the TCA claims and argued
that because the federal court had already determined that Sheriff Parker acted
reasonably, Plaintiff was precluded from litigating the TCA claims. The district
court agreed, determined that the issues decided by the federal court and raised in
2
state court were “identical,” and applied collateral estoppel to grant Defendants’
motion to dismiss. Plaintiff appeals.
STANDARD OF REVIEW
{5} We generally review the application of collateral estoppel for abuse of
discretion, unless the facts are not in dispute, in which case we review the issue de
novo. Bank of N.Y. v. Romero, 2016-NMCA-091, ¶ 23, 382 P.3d 991. Both parties
suggest we review this matter as a motion to dismiss—accepting all well-pleaded
facts as true and deciding questions of law de novo. The district court, however,
considered facts outside the state pleadings to decide whether to apply collateral
estoppel—specifically, the parties’ federal court arguments, discovery, and the
issues decided by the federal court. We therefore consider the district court’s order
as a grant of summary judgment and “construe all reasonable inferences in favor of
the nonmoving party and will uphold a grant of summary judgment where there are
no genuine issues of material fact and the movant is entitled to judgment as a matter
of law.” See Tunis v. Country Club Estate Homeowners Ass’n, Inc., 2014-NMCA-
025, ¶ 17, 318 P.3d 713 (internal quotation marks and citation omitted) (reviewing
a claim preclusion issue raised in a motion to dismiss as a motion for summary
judgment). “Whether the elements of claim preclusion are satisfied is a legal
question, which we review de novo.” Id. ¶ 20 (internal quotation marks and citation
omitted).
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{6} Thus, we review the district court’s grant of summary judgment, which was
based on the application of collateral estoppel, de novo.
DISCUSSION
{7} Defendants maintain that Plaintiff’s TCA claims against Sheriff Parker are
estopped by the federal court’s determination that Sheriff Parker’s actions were
“objectively reasonable” in the context of a federal constitutional claim. Specifically,
Defendant observes that the federal court decided the “issue of objective
reasonableness” and argues that the TCA claims are barred by collateral estoppel
because the same standard of “objective reasonableness” must apply to Plaintiff’s
TCA claims. We conclude that under these circumstances, collateral estoppel does
not apply to preclude Plaintiff’s TCA claims.
{8} Collateral estoppel, also called issue preclusion, “prevents a party from re-
litigating ultimate facts or issues actually and necessarily decided in a prior suit.”
Romero, 2016-NMCA-091, ¶ 23 (internal quotation marks and citation omitted). The
party “invoking collateral estoppel has the burden to introduce sufficient evidence
for the court to [determine] whether the doctrine is applicable.” Reeves v. Wimberly,
1988-NMCA-038, ¶ 15, 107 N.M. 231, 755 P.2d 75. In order for collateral estoppel
to apply, four elements must be met:
(1) the party to be estopped was a party to the prior proceeding, (2) the
cause of action in the case presently before the court is different from
the cause of action in the prior adjudication, (3) the issue was actually
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litigated in the prior adjudication, and (4) the issue was necessarily
determined in the prior litigation.
Romero, 2016-NMCA-091, ¶ 23 (internal quotation marks and citation omitted).
Once the movant “has produced sufficient evidence to meet all four elements, the
district court must determine whether the party to be estopped had a full and fair
opportunity to litigate the issue in the prior litigation.” Tunis, 2014-NMCA-025, ¶ 24
(internal quotation marks and citation omitted).
{9} To review the district court’s collateral estoppel determination, we must first
examine the legal framework for Plaintiff’s federal and TCA claims.
I. The Federal and TCA Claims
{10} In federal court, Plaintiff brought federal constitutional claims and state tort
claims. Plaintiff’s federal claims invoked § 1983, which provides a “federal remedy
for damages arising out of a constitutional violation by a person acting under color
of state law.” Wells v. Cnty. of Valencia, 1982-NMSC-048, ¶ 6, 98 N.M. 3, 644 P.2d
517. Defendants’ invocation of qualified immunity shifted the “heavy burden” to
Plaintiff to establish that (1) the facts demonstrated a violation of a constitutional
right, and (2) the right at issue was clearly established at the time of the violation.
Carabajal v. City of Cheyenne, 847 F.3d 1203, 1208 (10th Cir. 2017). Only if a
plaintiff meets this burden is the defendant required to establish the absence of
disputed material facts. See Clark v. Edmunds, 513 F.3d 1219, 1222 (10th Cir. 2008).
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{11} “Determining whether the force used to effect a particular seizure is
reasonable under the Fourth Amendment requires a careful balancing of the nature
and quality of the intrusion on the individual’s Fourth Amendment interests against
the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S.
386, 396 (1989) (internal quotation marks and citation omitted). The court
determines whether the officer’s use of force was reasonable after assessing the
“non-exclusive factors arising from the police-citizen encounter[,]” which are set
forth in Graham. Cavanaugh v. Woods Cross City, 718 F.3d 1244, 1255 (10th Cir.
2013). Those factors, considered objectively from the officer’s perspective, include
the severity of the suspected crime, the threat the suspect poses to safety, and
whether the suspect is actively resisting or fleeing. See Donahue v. Wihongi, 948
F.3d 1177, 1187, 1196 (10th Cir. 2020). Based on these principles, the federal court
reviewed the evidence objectively, from Sheriff Parker’s perspective: Driver had
battered Sheriff Parker with the Lincoln, fled the scene, did not stop despite the
danger, and put the public at risk. Based on this view of the evidence, the federal
court concluded Sheriff Parker “was reasonable to end the pursuit and the danger it
posed by bumping the back of the [Lincoln]” and that Irisema’s “rights under the
Fourth Amendment were not violated.”
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{12} In state court, Plaintiff brought claims arising under the TCA for negligence
and assault and battery.1 “Generally, the [TCA] provides governmental entities and
public employees acting in their official capacities with immunity from tort suits
unless the [TCA] sets out a specific waiver of that immunity.” Weinstein v. City of
Santa Fe ex rel. Santa Fe Police Dep’t, 1996-NMSC-021, ¶ 6, 121 N.M. 646, 916
P.2d 1313. In the district court and on appeal, Plaintiff maintains that the TCA
waives immunity for the negligent operation of a motor vehicle, Section 41-4-5 and,
in relevant part, for “liability for . . . wrongful death . . . resulting from assault [and]
battery, . . . when caused by law enforcement officers while acting within the scope
of their duties.” Section 41-4-12.2 Plaintiff contends that collateral estoppel does not
bar these TCA claims, because the relevant issues were not litigated and decided in
federal court and there has been no opportunity to fully and fairly litigate the issues.
We agree.
{13} It is well-established that “[n]ot all tortious conduct amounts to a
constitutional deprivation.” Wells, 1982-NMSC-048, ¶ 6. The Wells Court
1
Plaintiff additionally brought claims for loss of consortium and vicarious
liability. The district court determined these claims were dependent on the tort
claims and dismissed the dependent claims based on the dismissal of the tort claims.
Plaintiff argues these claims are not estopped, but does not argue that the district
court improperly determined the loss of consortium and vicarious liability claims are
dependent on the survival of the tort claims. Thus, the loss of consortium and
vicarious liability claims stand or fall based on our disposition of the tort claims.
2
The Legislature’s 2020 amendments to Section 41-4-12 have no bearing on
the present analysis, and so we cite the more recent statute.
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considered whether a plaintiff could pursue both a constitutional claim under § 1983
and a claim under the TCA. Wells, 1982-NMSC-048, ¶ 3. Although a constitutional
deprivation “can grow out of tortious conduct, the two are distinct concepts
compensable under different laws.” Id. ¶ 7.
Tortious conduct which does not amount to a constitutional violation
does not state a cause of action under [§] 1983, but may be fully
compensable under a state remedy for a tortious loss. In the case at bar,
[the] plaintiff’s allegations may not be compensable under [§] 1983, but
may be compensable under the [TCA].
Wells, 1982-NMSC-048, ¶ 7 (citation omitted). A tort, the Wells Court determined,
“is separate and distinct from a constitutional deprivation.” Id. ¶ 8. While the Wells
holding makes clear that tort claims and federal constitutional claims are legally
distinct and may coexist, our collateral estoppel inquiry cannot end here. Whether
the subject matter of the claims is different is only one element of collateral estoppel.
See Ullrich v. Blanchard, 2007-NMCA-145, ¶ 19, 142 N.M. 835, 171 P.3d 774(outlining the four collateral estoppel elements).
{14} The collateral estoppel doctrine “prevents a party from re-litigating ultimate
facts or issues actually and necessarily decided in a prior suit,” Deflon v. Sawyers,
2006-NMSC-025, ¶ 13, 139 N.M. 637, 137 P.3d 577 (internal quotation marks and
citation omitted), provided the party has “had a full and fair opportunity to litigate
the issue in the prior litigation.” Tunis, 2014-NMCA-025, ¶ 24 (internal quotation
marks and citation omitted). Defendants argue that Plaintiff’s tort claims are
8
precluded because (1) “[t]he issue of objective reasonableness” was litigated and
decided in federal court and (2) “the objectively reasonable standard is the applicable
standard to be applied in the remaining [s]tate law claims[.]” We consider
Defendants’ arguments in the context of Plaintiff’s TCA claims separately.
II. Plaintiff’s Negligence Claim Under the TCA Was Not Actually Litigated
and Necessarily Decided in Federal Court
{15} Plaintiff’s negligence claims arise from Section 41-4-5 of the TCA, which
waives immunity, in relevant part, for the “damages resulting from . . . wrongful
death . . . caused by the negligence of public employees while acting within the scope
of their duties in the operation or maintenance of any motor vehicle.” Liability for
acts or omissions under the TCA is “based upon the traditional tort concepts of duty
and the reasonably prudent person’s standard of care in the performance of that
duty.” Section 41-4-2(B). A traditional tort claim “requires the existence of a duty
from a defendant to a plaintiff, breach of that duty, which is typically based upon a
standard of reasonable care, and the breach being a proximate cause and cause in
fact of the plaintiff’s damages.” Milliron v. Cnty. of San Juan, 2016-NMCA-096,
¶ 11, 384 P.3d 1089 (internal quotation marks and citation omitted).
{16} Law enforcement officers are subject to the Section 41-4-5 immunity waiver
and have a duty under the common law to exercise the care of a “reasonably prudent
and qualified officer” in the same situation. Wilson v. Grant Cnty., 1994-NMCA-
9
001, ¶¶ 4, 9, 117 N.M. 105, 869 P.2d 293. In Wilson, this Court explained that
Section 41-4-5 must be interpreted so that officers “are expected to exercise only the
care that a reasonably prudent and qualified officer would exercise in the same
situation.” Wilson, 1994-NMCA-001, ¶ 9. We held that “if officers operate a motor
vehicle more carelessly than a reasonably prudent officer would in the same
circumstances, they will not be immune from suit if an accident results.” Id.Defendants equate the “reasonably prudent officer” standard of care referenced in
Wilson with the “objectively reasonable” standard applied in Fourth Amendment
cases and contend that because the federal court determined the latter, the former
must also be established. Plaintiff responds that no authority establishes that the
Fourth Amendment standard is the same as the standard of care applicable under the
TCA. We agree with Plaintiff. In Wilson, we did not define a standard of care for
law enforcement, much less hold that the standard of care under Section 41-4-5
mirrored the Fourth Amendment standard to determine excessive force. Instead, we
identified a duty to act as a reasonably prudent officer. Under traditional tort
principles, whether that duty was breached would depend on the applicable standard
of care. See § 41-4-2(B) (basing liability on “traditional tort concepts of duty” and
the standard of care in performing that duty).
{17} “Where the defendant is a professional, the duty imposed by law is not the
requirement to exercise ‘ordinary care’ under the same or similar circumstances but
10
to apply the knowledge, care, and skill of reasonably well-qualified professionals
practicing under similar circumstances.” Oakey, Estate of Lucero v. May Maple
Pharmacy, Inc., 2017-NMCA-054, ¶ 25, 399 P.3d 939 (internal quotation marks and
citation omitted). New Mexico views “statutes, regulations, and court rules imposing
requirements on professionals [as] relevant to the determination of the standard of
care required by the circumstances and whether it has been met, even if they do not
necessarily suffice to establish a standard of care or provide a cause of action for
their violation.” Id. ¶ 26; see also Rutherford v. Chaves Cnty., 2002-NMCA-059,
¶ 11, 132 N.M. 289, 47 P.3d 448 (explaining that the duty for claims brought under
the TCA “must be found outside the [TCA] either at common law or by statute”
(internal quotation marks and citation omitted). In the present case, Plaintiff
maintains that Sheriff Parker was required to conform his pursuit conduct to the Law
Enforcement Safe Pursuit Act, NMSA 1978, §§ 29-20-1 to -4 (2003) (LESPA).
{18} LESPA requires the chief law enforcement officer of every state to establish
and enforce written policies “governing the conduct of law enforcement officers . . .
who are involved in high speed pursuits.” Section 29-20-4(A). LESPA further
outlines the mandatory minimum policies and requirements to address safe pursuit.
See § 29-20-4(C) (listing multiple mandatory considerations for law enforcement
officers engaging in pursuit). LESPA imposes mandatory requirements for law
11
enforcement and is relevant to determine the professional standard of care under
these circumstances. Defendants argue that LESPA is irrelevant for four reasons.
{19} First, Defendants note that LESPA “does not provide the basis for a cause of
action,” but do not explain why a statute must itself establish a private cause of action
to be relevant to the standard of care under the TCA. See Torres v. State, 1995-
NMSC-025, ¶ 11, 119 N.M. 609, 894 P.2d 386 (noting that a statute imposing a duty
to investigate crimes formed the basis for a cause of action under the TCA). The
TCA provides for the cause of action if immunity is waived, and LESPA is relevant
to establish the standard of care.
{20} Second, Defendants state that “LESPA does not set forth a standard of care
applicable to a common-law claim of negligence” but instead only outlines
“provisions to be embodied in a written policy of the local government agency.
LESPA, however, requires departments to impose mandatory policies on law
enforcement officers’ pursuit behavior and decision-making and is a statement of
New Mexico’s policy regarding police pursuits. As a result, LESPA is a statute
“imposing requirements on professionals” and is relevant to determine the standard
of care. Oakey, 2017-NMCA-054, ¶ 26.
{21} Third, Defendants argue that LESPA’s provisions are just an embodiment of
the “common-law” standard. We construe Defendants third argument to be that
LESPA’s provisions outline what an objectively reasonable officer would do under
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the circumstances and that the federal court’s finding of “objective reasonableness”
actually and necessarily included the considerations outlined in LESPA. We
disagree for two reasons. First, Defendants point to Section 29-20-4(C)(1) to suggest
that the requirements of LESPA embody the common law. Section 29-20-4(C)(1)
states as follows:
[A] law enforcement officer may initiate a high speed pursuit to
apprehend a suspect who the officer has reasonable grounds to believe
poses a clear and immediate threat of death or serious injury to others
or who the officer has probable cause to believe poses a clear and
immediate threat to the safety of others that is ongoing and that existed
prior to the high speed pursuit[.]
Section 29-20-4(C) mandates that written policies “shall, at a minimum, require”
four separate provisions, including the provision Defendants cite but also including
three other specific requirements to which Defendants do not refer. See generally
§ 29-20-4(C) (listing four separate policy requirements linked by the “and”
conjunction). Second, the federal court’s “objectively reasonable” finding did not
consider the state policy objectives set forth in LESPA but instead relied on federal
constitutional policy.
{22} Based on the constitutional balance struck by the Supreme Court of the United
States in Scott v. Harris, 550 U.S. 372 (2007), the federal court rejected Plaintiff’s
position that Sheriff Parker should have stopped the chase under the circumstances,
explaining:
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The Estate’s underlying assumption that Sheriff Parker should have
simply stopped chasing [Driver] and thereby ended the threat to [Driver
and Irisema], and the public does not withstand scrutiny. As the
Supreme Court explained in Scott, ‘there would have been no way to
convey convincingly to [Driver] that the chase was off, and that he was
free to go.’ Scott, 550 U.S. at 385. In fact, [Driver] ‘would have had no
idea whether [police] were truly letting him get away, or simply
devising a new strategy for capture.’ Id. As a result, [Driver] ‘might
have been just as likely to respond by continuing to drive recklessly as
by slowing down and wiping his brow.’ Id. Additionally, requiring
Sheriff Parker to capitulate would create obvious, ‘perverse incentives’
that a ‘fleeing motorist would know that escape is within his grasp, if
only he accelerates to 90 miles per hour, crosses the double-yellow line
a few times, and runs a few red lights.’ Id. As did the Supreme Court
in Scott, [this] Court here rejects the Estate’s implication that Sheriff
Parker was required to stop the chase and give up.
LESPA, however, sets forth New Mexico public policy governing law enforcement
vehicle pursuits. Section 29-20-4(C)(2) states that written law enforcement policies
shall require that “a law enforcement officer shall not initiate or continue a high
speed pursuit when the immediate danger to the officer and the public created by the
high speed pursuit exceeds the immediate danger to the public if the occupants of
the motor vehicle being pursued remain at large[.]” LESPA additionally outlines a
number of factors that law enforcement must consider “when deciding whether to
initiate or continue a high speed pursuit[.]” Section 29-20-4(C)(3). For example,
under LESPA, in order to initiate and continue a pursuit, an officer considers factors
like the road conditions, vehicle and pedestrian traffic, and the ability to locate the
suspect at a later date. Section 29-20-4(C)(3)(c)-(e). LESPA reflects the state’s
concerns about the dangers posed to the community by police chases. At its heart,
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the Fourth Amendment involves a “careful balancing” of individual protections and
government interests. Graham, 490 U.S. at 396. LESPA strikes a different legal and
factual balance than federal constitutional law and provides a different framework
for a jury to consider the reasonableness of the decision to initiate and continue a
pursuit.
{23} Fourth, Defendant appears to argue that LESPA is only relevant to the
standard of care if Plaintiff pursues a negligence per se claim, which Defendant
maintains Plaintiff cannot establish under LESPA. Defendant cites Heath v. La
Mariana Apartments, 2008-NMSC-017, ¶ 22, 143 N.M. 657, 180 P.3d 664 and
asserts “negligence per se is the same as simple negligence except that the standard
of care is defined by statute rather than by common law.” The Heath Court, however,
considered potential conflicts between the common law and statutory standards and
concluded “[t]he statutory standard serves to supplement the common law standard,
and the jury may be instructed on negligence per se using the statutory standard.” Id.
¶ 22. Heath does not prohibit the use of a statutory standard of care for a simple
negligence claim but instead, instructs on how a statutory standard of care
supplements the common law to establish a standard of care for a negligence per se
15
claim—when a negligence per se claim is made. We cannot find in the pleadings or
briefs where Plaintiff argues for the application of negligence per se.3
{24} We return then to collateral estoppel. In Deflon, our New Mexico Supreme
Court gave two reasons why an issue was not actually litigated and necessarily
decided in a prior federal proceeding. One reason was that the “threshold showing”
for the federal claims was “different from what [was] needed to establish” the state
claims. 2006-NMSC-025, ¶ 17. Another reason was that “a substantial portion of
[the p]laintiff’s evidence was excluded in federal court but would not be excluded
in state court.” Id.{25} In the present case, a Fourth Amendment claim under § 1983 and a negligence
claim pursuant to Section 41-4-5 require different threshold showings. The relevant
Fourth Amendment inquiry considers whether a policer officer used excessive force.
The issue of excessive force turns on whether the officer’s actions were “objectively
reasonable.” Graham, 490 U.S. at 396-97. For a TCA claim, the question is whether
an officer exercised “the care that a reasonably prudent and qualified officer would
exercise in the same situation.” Wilson, 1994-NMCA-001, ¶ 9. Despite similar
3
Section 41-4-12 waives immunity for claims against law enforcement
officers, in relevant part, for personal injury arising from the failure to comply with
duties established under a statute. To the extent Plaintiff argues that violations of
LESPA establish a claim under Section 41-4-12, we are unpersuaded that LESPA
imposes a duty on law enforcement officers that creates a cause of action under
Section 41-4-12. See Torres, 1995-NMSC-025, ¶ 11.
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phrasing, the standard of care for police pursuits, informed by LESPA, is broader
than the Fourth Amendment standard applied to allegations of excessive force in
effectuating a seizure. The federal court balances the nature of the crime committed
by the suspect, the threat posed by the suspect, and whether the suspect is fleeing.
See Donahue, 948 F.3d at 1196. The negligence claim, on the other hand, considers
the conduct in the context of the professional standard of care for police pursuits. As
a result, the issues were not actually litigated and necessarily decided, and collateral
estoppel does not preclude Plaintiff’s negligence claim.
III. Plaintiff’s Assault and Battery Claims Were Not Actually Litigated and
Necessarily Decided in the Federal Court
{26} Plaintiff additionally brought a claim for aggravated assault and battery.
Section 41-4-12 waives immunity for law enforcement officers where their actions
result in liability for the enumerated torts of assault and battery. Weinstein, 1996-
NMSC-021, ¶ 6; see § 41-4-12. Defendants continue to argue that the federal court’s
determination that Sheriff Parker acted “objectively reasonably” precludes
Plaintiff’s assault and battery claims.
{27} We again begin with identifying the “threshold showing” for assault and
battery. As an initial matter, the parties cite different sources for the elements of
assault and battery. Defendants cite Fuerschbach v. Southwest Airlines Co., 439 F.3d
1197, 1208-09 (10th Cir. 2006), which in turn cites the Restatement (Second) of
17
Torts § 18 (Am. L. Inst. 1965), to define battery. We agree that the Restatement
(Second) of Torts § 18 appropriately defines the elements for civil battery and
assault. See Young v. Gila Reg’l Med. Ctr., 2021-NMCA-042, ¶¶ 28-29, 495 P.3d
620 (citing the Restatement (Second) of Torts to discuss civil battery defenses); State
v. Ortega, 1992-NMCA-003, ¶ 12, 113 N.M. 437, 827 P.2d 152 (applying the
Restatement (Second) of Torts § 18 to a criminal battery charge).
{28} According to the Restatement (Second) of Torts, the elements of civil
battery are as follows:
(a) [an] act[] intending to cause a harmful or offensive contact with
the person of the other or a third person, or an imminent apprehension
of such a contact, and
(b) an offensive contact with the person of the other directly or
indirectly results.
Restatement (Second) of Torts § 18. For assault, the actor need only intend to cause
another to be put in imminent apprehension of harmful or offensive contact, but the
contact need not occur. Restatement (Second) of Torts § 21 (Am. L. Inst. 1965)
(defining assault). Defendants do not argue that Plaintiff is precluded from proving
these elements. Instead, Defendants appear to argue that the federal court’s
determination that Sheriff Parker did not violate the Fourth Amendment establishes
a complete defense to Plaintiff’s civil assault and battery claims. With this, we
disagree. Defendants cite no authority establishing that a plaintiff’s failure to satisfy
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the Fourth Amendment standard is a complete defense to claims for civil assault and
battery.
{29} In support of their argument that “no different standard” applies to evaluate
claims under the Fourth Amendment and intentional torts, Defendants cite Mead v.
O’Connor, 1959-NMSC-077, 66 N.M. 170, 344 P.2d 278, State v. Gonzales, 1982-
NMCA-043, 97 N.M. 607, 642 P.2d 210, and State v. Kraul, 1977-NMCA-032, 90
N.M. 314, 563 P.2d 108. In Mead, our Supreme Court affirmed a jury’s verdict
against a defendant police officer, because though officers, within reasonable limits,
judge “the force necessary to enable them to make arrests” and courts “afford them
the utmost protection” when officers act in good faith, “it devolves upon the jury,
under the evidence in the case and proper instructions of the court, to resolve these
questions.” 1959-NMSC-077, ¶ 4. This Court in Gonzales and Kraul considered
self-defense instructions in the context of battery on a peace officer charges.
Gonzales, 1982-NMCA-043, ¶¶ 1, 16-17; Kraul, 1977-NMCA-032, ¶¶ 1, 29, 31-32.
In none of these cases did the Courts consider whether the plaintiff’s inability to
establish a violation of the Fourth Amendment in federal court either precluded
claims for civil assault and battery or acted as a complete defense to such claims.
Further, unlike Gonzales and Kraul, the present case does not involve justification
for the use of force against a police officer or self-defense, but instead whether a
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police officer can be civilly liable for assault and battery when a federal court has
determined that the officer did not exercise constitutionally excessive force.
{30} Defendants additionally looked to Reynaga v. County of Bernalillo, 64 F.3d
670 (10th Cir. 1995) (unpublished table decision).4 In Reynaga, a plaintiff brought
claims for excessive force under § 1983 and for battery. Reynaga, 64 F.3d at **1-2.
The plaintiff argued that the battery jury instruction improperly required the jury to
find the officer used “unlawful force.” Id. at *2. The Reynaga court—citing Kraul,
Gonzales, and Mead—determined that because the officer “was privileged to use
reasonable force . . ., the court correctly instructed that the battery claim could
prevail only if [the] plaintiff proved that [the officer] used ‘unlawful force.’ ”
Reynaga, 64 F.3d at *2. Defendants do not argue that Plaintiff would have to prove
Sheriff Parker’s force was “unlawful” in order to establish civil assault and battery.
Rather, Defendants argue that the legal standards applied to the Fourth Amendment
and for civil assault and battery are the same.
{31} The Reynaga court did not consider whether the standard for the Fourth
Amendment and the standard for defending civil battery were the same. The
4
Defendants cite two unpublished federal cases, Park v. Gaitan, 680 F. App’x
724 (10th Cir. 2017) (unpublished table decision) and Navarro v. N.M. Dep’t of Pub.
Safety, No. 2:16-cv-1180, 2018 WL 4148452 (D.N.M. Aug. 30, 2018) (mem. and
order). These courts cited Gonzales, Mead, and Kraul to dismiss state assault and
battery claims after determining the plaintiff failed to establish a Fourth Amendment
violation. Park, 680 Fed. App’x at 740, 743-44; Navarro, No. 2:16-cv-1180, 2018
WL 4148452 at **12-13.
20
Reynaga court determined the jury instruction requiring “unlawful force” comported
with a “general rule,” which the court quoted from 6 Am. Jur. 2d, Assault & Battery
§ 125 (1963): “a law enforcement officer ‘is not civilly liable for’ using ‘such force
as may be reasonably necessary in the enforcement of law and the preservation of
order.’ ” Id. at *2 (quoting 6 Am. Jur. 2d, Assault & Battery § 125 (1963)). The
current iteration of a “general rule,” or privilege, for law enforcement officers to use
force, drawn from the same source that the Reynaga court quoted, states:
Police officers may not be held liable in an action for assault and battery
for the use of reasonably necessary force in the enforcement of the law.
Officers are privileged to use force or commit battery when making a
lawful arrest. The test for qualified privilege in an assault and battery
suit is both subjective and objective: the officer must subjectively
believe that he or she used no more force than necessary, but the
officer’s judgment is compared to that of a hypothetical reasonable
police officer placed in the same situation.
The use of deadly force by a peace officer is privileged where used to
prevent death or serious bodily harm to the officer or other persons.
6 Am. Jur. 2d, Assault & Battery § 104 (2021) (footnotes omitted). Thus, the
“general rule” that supported the Reynaga decision has been amended to include
both an objective and a subjective test. The Fourth Amendment is famously a strictly
objective test. As a result, Reynaga does not persuade us that a failure to establish a
Fourth Amendment violation erects a defense to civil claims for assault and battery
brought under the TCA.
21
{32} None of the cases cited by Defendants directly address the matter at hand:
whether a plaintiff’s failure to establish a Fourth Amendment claim for excessive
force likewise establishes a defense for civil assault and battery claims brought under
the TCA. The parties do not propose, and we do not adopt, a specific privilege as a
defense to a civil claim of assault and battery brought against a police officer.
Nevertheless, the traditional defenses for law enforcement to assert in response to
civil assault and battery claims are not the same as the “objectively reasonable
officer” standard that is at the root of Fourth Amendment analysis. See, e.g., 6 Am.
Jur. 2d, Assault & Battery § 104 (defining an objective and subjective test for the
privileged use of force for police officers as a defense to civil assault and battery);
Restatement (Second) of Torts § 131 (1965) (affording a privilege for the use of
deadly force by a police officer if the officer reasonably believed the other
committed a felony and reasonably believed the arrest could not “otherwise be
effected”). We therefore reject Defendants’ suggestion that the federal court’s
determination that Sheriff Parker’s actions were objectively reasonable under the
Fourth Amendment is a complete defense to civil assault and battery and hold that
the issues pertaining to defenses to civil assault and battery were not actually
litigated and necessarily decided by the federal court.
IV. Plaintiff Did Not Have A Full and Fair Opportunity to Litigate Her
Claims in the Federal Court
22
{33} We further hold that Plaintiff did not have a full and fair opportunity to litigate
the state law issues in the federal court proceeding. Tunis, 2014-NMCA-025, ¶ 19.
We pause briefly to address the mechanism for collateral estoppel. Generally, we do
not reach whether the parties had an opportunity to fully and fairly litigate if we
determine that the other four elements of collateral estoppel were not met. See
Shovelin v. Cent. N.M. Elec. Coop., Inc., 1993-NMSC-015, ¶ 10, 115 N.M. 293, 850
P.2d 996 (“If the movant introduces sufficient evidence to meet all elements of this
test, the trial court must then determine whether the party against whom estoppel is
asserted had a full and fair opportunity to litigate the issue in the prior litigation.”).
In the present case, however, the differences between the federal and the state
proceedings merit our attention. Id. ¶ 15 (weighing, in relation to a full and fair
opportunity to litigate, “countervailing factors including, but not limited to, the
incentive for vigorous prosecution or defense of the prior litigation; procedural
differences between the prior and current litigation, including the presence or
absence of a jury; and the possibility of inconsistent verdicts”).
{34} First, in state court, the question of reasonableness is generally reserved for
the jury, while the federal court decides the constitutional “reasonableness” question
as a matter of law in the excessive force context. Under the Fourth Amendment, the
question whether the force used was reasonable is a mixed question of law and fact.
See Cavanaugh, 718 F.3d at 1254. At the summary judgment stage, the federal court
23
considers “whether, under all the circumstances, the officer’s use of force was
reasonable.” Id. at 1255. This question is “channeled” through the Graham factors.
Cavanaugh, 718 F.3d at 1255. If the facts pertaining to these factors are disputed,
the matter of excessive force goes to the jury. Id. at 1255. If the facts are not disputed,
the court decides whether the officer’s conduct was reasonable as a matter of law.
See Donahue, 948 F.3d at 1187 (“[W]here there are no disputed questions of
historical fact such as on summary judgment, the court makes the determination of
reasonable suspicion, probable cause, or excessive force on its own as a question of
law.” (omissions, alterations, internal quotation marks, and citation omitted)). New
Mexico courts, on the other hand, prefer reasonableness questions to be decided by
a jury. See Oakey, 2017-NMCA-054, ¶ 24 (observing that “questions concerning
whether the defendant has exercised proper care in the performance of a legal duty
are factual issues”); see also Martinez v. N.M. Dep’t of Transp., 2013-NMSC-005,
¶ 47, 296 P.3d 468 (“Questions of ‘reasonableness’ are quintessential issues for a
jury to resolve.”). Plaintiff therefore did not have a full and fair opportunity to have
a jury determine reasonableness in relation to the TCA claims.
{35} Second, the federal and state causes of action allocate the burden of proof
differently. The federal qualified immunity analysis shifts the entire burden of proof
to the plaintiff. See Carabajal, 847 F.3d at 1208 (describing the heavy burden borne
by the plaintiff to overcome qualified immunity at the summary judgment stage).
24
For the TCA claims, to the extent “reasonableness” is a defense, the defendant bears
the burden to establish the defense or privilege. See UJI 13-304 NMRA (assigning
the burden of proof to the party relying upon a defense). In federal court, therefore,
Defendants were required to shoulder none of the burden, whereas in state court,
Defendants would have to prove their own defenses.
{36} Third, the federal court explicitly did not consider the facts in the context of
the state claims. The federal court stated: “[t]he facts set forth here are those critical
to the qualified immunity analysis and the background of the case, not to the state
law claims that may well permit the parties to consider [Driver’s] state of mind as
well as Sheriff Parker’s.” With this comment, the federal court appears to be
referring to the tort concept of comparative fault, in which those that contribute to
an injury are held liable for only their own portion of the fault. See Garcia v. Gordon,
2004-NMCA-114, ¶ 8, 136 N.M. 394, 98 P.3d 1044 (“Pure comparative negligence
denies recovery for one’s own fault; it permits recovery to the extent of another’s
fault; and it holds all parties fully responsible for their own respective acts to the
degree that those acts have caused harm.” (internal quotation marks and citation
omitted)). The parties did not brief comparative fault or its relevance to the collateral
estoppel analysis, and so we do not address it. Nevertheless, the federal court noted
that the facts could be viewed differently in the context of the TCA claims, which
suggests Plaintiff did not have a full and fair opportunity to litigate the TCA claims.
25
CONCLUSION
{37} Having concluded that collateral estoppel does not apply and Plaintiff’s state
court claims brought pursuant to the TCA are not precluded by the federal court’s
grant of summary judgment on the § 1983 excessive force claim, we reverse and
remand for further proceedings.
{38} IT IS SO ORDERED.
__________________________________
KATHERINE A. WRAY, Judge
WE CONCUR:
_________________________________
J. MILES HANISEE, Chief Judge
_________________________________
KRISTINA BOGARDUS, Judge
26