MERLINDA PEREA; FRANCINE PUENTES, as co-personal representatives of the estate of Jerry Perea, and on behalf of the minor, B.P., Plaintiffs - Appellees.
APD OFFICER DAVID BACA; APD OFFICER ANDREW JARAMILLO, Defendants - Appellants, and CITY OF ALBUQUERQUE; ALBUQUERQUE CITY POLICE, Defendants
from the United States District Court for the District of New
Mexico. (D.C. No. 1:13-CV-00263-RB-RHS).
M. Griffin, Deputy City Attorney, City of Albuquerque Legal
Department, Albuquerque, New Mexico, for
E. Juarez, Albuquerque, New Mexico (Cheryl K. McLean,
Albuquerque, New Mexico, with him on the briefs), for
LUCERO, HARTZ, and GORSUCH, Circuit Judges.
Perea died in 2011 after an incident involving Officers David
Baca and Andrew Jaramillo. The district court denied Baca and
Jaramillo qualified immunity against a Fourth Amendment
excessive force claim, and they appealed. We hold that the
officers' repeated tasering of Perea after he was subdued
constituted excessive force, and that it was clearly
established at the time of the taserings that such conduct
was unconstitutional. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm.
interlocutory appeal from the denial of qualified immunity,
" we take, as given, the facts that the district court
assumed when it denied summary judgment." Morris v.
Noe, 672 F.3d 1185, 1189 (10th Cir. 2012) (quotation
omitted). Thus, we " rely on the district court's
description of the facts, taken in the light most favorable
to Plaintiff, and do not reevaluate the district court's
that the . . . record is sufficient to prove these
facts." Al-Turki v. Robinson, 762 F.3d 1188,
1191 (10th Cir. 2014). The facts as stated by the district
court are as follows.
March 21, 2011, Merlinda Perea called 911 and told the
operator that her son, Perea, was on " very bad
drugs" and that she was afraid of what he might do.
Around the same time, a neighbor also called 911, reporting
that Perea was pacing in his yard, clutching a Bible, and
asking forgiveness of a higher power. Baca and Jaramillo were
sent to perform a welfare check. The officers were informed
that they were responding to a verbal fight and that no
weapons were involved. They were also informed that Perea
suffered from mental illness and may have been on drugs.
arrival at the home, the officers were told that Perea
recently left on his bicycle, that he was " acting
up," and that Merlinda Perea was afraid for Perea's
welfare. In separate patrol cars, Baca and Jaramillo began to
search for Perea in case he was a danger to himself. The
officers located Perea pedaling his bicycle. Perea saw the
patrol car and began to pedal faster, at which point
Jaramillo turned on his emergency ...