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Perea v. Baca

United States Court of Appeals, Tenth Circuit

April 4, 2016

MERLINDA PEREA; FRANCINE PUENTES, as co-personal representatives of the estate of Jerry Perea, and on behalf of the minor, B.P., Plaintiffs - Appellees.
v.
APD OFFICER DAVID BACA; APD OFFICER ANDREW JARAMILLO, Defendants - Appellants, and CITY OF ALBUQUERQUE; ALBUQUERQUE CITY POLICE, Defendants

Page 1199

          Appeal from the United States District Court for the District of New Mexico. (D.C. No. 1:13-CV-00263-RB-RHS).

         Stephanie M. Griffin, Deputy City Attorney, City of Albuquerque Legal Department, Albuquerque, New Mexico, for Defendants-Appellants.

         Santiago E. Juarez, Albuquerque, New Mexico (Cheryl K. McLean, Albuquerque, New Mexico, with him on the briefs), for Plaintiffs-Appellees.

         Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.

          OPINION

         LUCERO, Circuit Judge.

Page 1200

          Jerry 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.

         I

          On 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 conclusion

Page 1201

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.

         On March 21, 2011, Merlinda Perea called 911 and told the operator that her son, Perea,[1] 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.

         Upon 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 ...


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