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,
ELIAS MONTOYA, Defendant-Appellant, and TONY DETAVIS; ANTHONY LUNA; NEW MEXICO STATE POLICE DEPARTMENT; JOHN DOES, 1, 2, and 3, Defendants.
from the United States District Court for the District of New
Mexico (D.C. No. 1:15-CV-01113-SMV-LAM)
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
BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
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.
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
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.
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.
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
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.
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
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 ...