Cruz v. City of Deming.
No. 24-2091. 5/28/2025. D.N.M. Judge Tymkovich. Use of Force—Reasonableness—Qualified Immunity—New Mexico Tort Claims Act.
May 28, 2025
A motorist on Interstate 10 near the City of Deming called 911 to report that a man was in the median with a firearm and that he may have fired shots. Responding police officers from multiple law enforcement agencies arrived on scene and found Valencia in a field near the highway. Valencia matched the caller’s description and was holding what appeared to be an AR-style rifle. Some of the officers recognized Valencia from previous encounters, and several of them were aware that Valencia had a history of mental illness and could be unpredictable and violent. Officers ordered Valencia not to touch his weapon, to get on his knees, and then to get on his stomach, but Valencia did not consistently comply with the officers’ commands. Valencia then placed his hand on the weapon and shifted its position, raising safety concerns, and five officers shot Valencia. He died from his wounds. It was later determined that Valencia was carrying an airsoft gun with an orange tip that had been painted black. Valencia’s estate (the estate) brought federal and state law claims against the City of Deming, several individual police officers, Luna County, and the New Mexico Department of Public Safety. The officers moved for summary judgment, asserting qualified immunity as to several of those claims. The district court found no disputed material facts based on deposition testimony, other record evidence, and bodycam footage. It granted summary judgment on the estate’s excessive force claim and dismissed the estate’s claims brought under the New Mexico Tort Claims Act.
On appeal, the estate argued that the district court erred in dismissing its excessive force claim and granting the officers qualified immunity. The estate maintained that the district court accepted the officers’ version of events and did not view the evidence in the light most favorable to the nonmovant party, and it asserted that the officers used objectively unreasonable force under the totality of circumstances. The parties agreed it was clearly established that force is unreasonable if the immediate cause of the need to use lethal force is an officer’s reckless and deliberate conduct, so the issue was whether the officers violated Valencia’s constitutional right. The Tenth Circuit thus considered (1) the severity of the crime, (2) whether Valencia posed an immediate threat to the safety of the officers or others, and (3) whether Valencia was actively resisting arrest or attempting to evade arrest by flight. The first factor weighs in favor of the officers, as an active shooter on an Interstate highway is among the most serious of crimes. The second factor also favors the officers because while Valencia complied with some orders after repeated commands, such as to raise his hands or get on his knees, he did not immediately comply or continue to comply with others, such as the command to keep his hands up or show his hands and to not touch his gun. Rather, Valencia touched his weapon and lowered his hands, ultimately shifting the weapon’s position slightly toward the officers, who indicated that they thought Valencia’s final movement was dangerous and threatened the safety of those at the scene. Further, it is reasonable that the officers would not have been able to carefully assess whether Valencia had a toy rifle in this high-pressure situation, and a reasonable officer in the same position would conclude that Valencia made hostile gestures and manifested hostile intent. The third factor favors the estate because there is no evidence that Valencia was actively resisting or trying to evade arrest by fleeing. It was therefore objectively reasonable for the officers to use lethal force given the totality of circumstances, and the officers are entitled to qualified immunity on the estate’s excessive force claim.
The estate also argued that the district court erred in dismissing its state law claims under the New Mexico Tort Claims Act, specifically for (1) assault and battery resulting in wrongful death; (2) negligence resulting in assault and battery and wrongful death; and (3) negligent training, supervision, and retention. First, the immunity analysis under the New Mexico Tort Claims Act includes both an objective and a subjective test. As discussed above, the officers’ use of force was objectively reasonable, and the estate did not identify any record evidence showing that the officers had ill intent or subjectively believed they used more force than necessary. Further, the relevant New Mexico statute does not apply to entities such as the City of Deming, Luna County, or the New Mexico Department of Public Safety because they are not employees or officers within the meaning of the statute. Therefore, the district court properly dismissed the assault and battery resulting in wrongful death claim. Accordingly, the negligence resulting in assault and battery and wrongful death claim necessarily fails because negligence cannot arise when no underlying assault or battery exists. Lastly, the negligent training, supervision, and retention claim, which is against the City of Deming, Luna County, and the New Mexico Department of Public Safety similarly fails because, again, the relevant New Mexico statute waives immunity only for law enforcement officers, not entities such as these defendants, and there is no underlying assault or battery.
The summary judgment of the estate’s excessive force claim and the New Mexico State Tort Act claims was affirmed.