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Farrell v. Montoya

United States Court of Appeals, Tenth Circuit

December 27, 2017

KANA FARRELL; ORIANA LEE FARRELL, as an individual and O.B.O her minor children, HEZEKIAH FARRELL, II, KUSH FARRELL, MAGNIFICENT FARRELL, and GILBRALTAR FARRELL, Plaintiffs - Appellees,
v.
ELIAS MONTOYA, Defendant-Appellant, and TONY DETAVIS; ANTHONY LUNA; NEW MEXICO STATE POLICE DEPARTMENT; JOHN DOES, 1, 2, and 3, Defendants.

         Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:15-CV-01113-SMV-LAM)

          Mark D. Standridge, Jarmie & Associates, Las Cruces, New Mexico, for Defendant-Appellant Elias Montoya.

          Kathryn J. Hardy (Alan H. Maestas, with her on the brief), Alan Maestas Law Office, P.C., Taos, New Mexico, for Plaintiffs-Appellees.

          Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.

          HARTZ, CIRCUIT JUDGE.

         Oriana Lee Farrell and her five children claim that Defendant Elias Montoya, while on duty as a New Mexico state police officer, violated their Fourth Amendment rights when he fired three shots at their minivan as it drove away from officers trying to effect a traffic stop. We hold that the district court should have granted Defendant summary judgment because the shots did not halt the Farrells' departure and, because they were fleeing, they were not seized at the time Montoya fired his weapon, even if they had a subjective intent to submit to authority.

         I. BACKGROUND

         On October 28, 2013, Ms. Farrell was driving a minivan with her five children- Kana (age 16), Hezekiah (age 14), Kush (age 12), Magnificent (age 9), and Gilbraltar (age 6)-on Highway 518 near Taos, New Mexico, when Officer Tony DeTavis pulled her over for speeding. The events that followed were largely captured by the dash-cam video recorder in DeTavis's police cruiser. We supplement what is shown on the video with sworn statements, sometimes contradictory, by the participants.

         A few minutes after initiating the stop, DeTavis approached the minivan parked on the right shoulder of the highway and explained to Ms. Farrell that he was going to give her a citation for going 71 mph in a 55 mph zone. He gave her two options: pay the penalty of $126 within 30 days or see a Taos magistrate within 30 days. For two or three minutes Ms. Farrell refused to make a decision because she did not know where she would be in 30 days. Finally, DeTavis told her to turn off her engine while he informed the dispatcher that she was refusing to make a decision. As he walked back to his car, the minivan slowly pulled onto the road, continuing down the highway at a normal speed.

         DeTavis returned to his car and followed the minivan with his sirens on, both cars traveling near the 55 mph speed limit. A minute later the minivan stopped again. DeTavis pulled up behind the minivan, exited his vehicle, opened the driver's door of the minivan, and said in a raised voice, "Get out of the vehicle right now." District court Docket 31, included in Aplt. App. Vol. 1 (hereinafter "Dash-cam Video") at 10:25- 10:32. As he reached into the minivan in an apparent attempt to remove Ms. Farrell, several of the children screamed-shouting, among other things, "Leave my mom alone!" Id. at 10:35-10:37. A few seconds later Hezekiah left the minivan through the passenger-side sliding door. DeTavis told Ms. Farrell to tell her son to get back in the vehicle. As Hezekiah walked around the front of the minivan, DeTavis drew his Taser from his holster, stepped back, and pointed it at Hezekiah. Ms. Farrell testified that she had believed it to be a gun. Hezekiah reentered the minivan. After Ms. Farrell refused to comply with DeTavis's demand that she get out of the vehicle, he called for backup, using the radio on his shoulder. He tried to pull her out, while the children cried and screamed, "Get off of her!" Id. at 11:54. For about four minutes, DeTavis continued to command Ms. Farrell to get out of the vehicle to talk with him. But she said that that her children were scared and that she was worried that he would not be peaceful.

         Eventually, Ms. Farrell asked DeTavis to shake her hand as a sign that he would be peaceful. When he complied, she emerged and walked with DeTavis to the back of the minivan. DeTavis informed her that two officers would be arriving soon and told her to turn around to face the vehicle. Instead she walked quickly toward the driver's door of the minivan, with DeTavis following. As she reached for the door, he grabbed her right wrist to keep her from getting back in the minivan, while the children screamed and Hezekiah again left the minivan. He walked toward his mother and DeTavis. DeTavis shouted at him to get back in the vehicle, but Hezekiah came toward him and tried to pull DeTavis's hand off his mother. Hezekiah tussled with DeTavis, apparently attempting to grab his hands, until DeTavis drew his Taser and pointed it at Hezekiah. DeTavis repeatedly commanded, "Get down on the ground!" before running at Hezekiah, Taser drawn. Id. at 16:45-17:05. Hezekiah ran around the front of the minivan and climbed in through the passenger-side sliding door. DeTavis followed and tried to prevent the children from closing the door. While DeTavis was engaged with Hezekiah, the other Farrells had been screaming and jumping in and out of the minivan.

         As another police cruiser arrived, DeTavis opened the sliding door and pointed the Taser into the minivan. Ms. Farrell and all the children were in their vehicle. Hezekiah then managed to close the sliding door as a third police cruiser, driven by Defendant Montoya, arrived. Officer Anthony Luna, who had arrived in the second cruiser, ran to the passenger side of the minivan. DeTavis pulled his baton from his belt and yelled, "Get them out!" Dash-cam Video at 17:12-13. Luna asked, "He got a gun?" and DeTavis responded, "No." Id. at 17:13-15. After trying the door handle of the sliding door, Luna drew his gun from its holster, shouting, "Open the fucking door!" Id. at 17:16.

         Defendant Montoya then exited his police cruiser, drew his gun, and faced the minivan. DeTavis raised his baton over his head and hit the rear passenger window four times, breaking it. Montoya moved behind the driver's side of the rear of the minivan. Just after DeTavis's baton hit the window a fourth time, the minivan began to drive away at a moderate speed. Montoya, straddling the white line delineating the road's shoulder, aimed his gun in the direction of the minivan and fired three shots. The minivan neither slowed nor stopped as the shots were fired. On appeal it is undisputed that no bullet hit the minivan or the Farrells inside. Montoya's affidavit states that he was aiming at the left rear tire.

         The three officers returned to their vehicles and pursued the Farrells down Highway 518, reaching speeds of 100 mph during the chase. When Ms. Farrell approached a more congested area, she weaved through traffic, driving on the wrong side of the road on several occasions. According to affidavits by Ms. Farrell and Kana, Kana called 911 during the chase, and the family looked for a police station at which to pull over because they were afraid that the three officers ...


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