Date: 07-31-2024

Case Style:

Angel Salcido v. City of Las Vegas, et al.

Case Number: 1:21-cv-01222

Judge: Kenneth J. Gonzales

Court: United States District Court for the District of New Mexico (Bernalillo County)

Plaintiff's Attorney:

Click Here For The Best Albuquerque Civil Rights Lawyer Directory

Defendant's Attorney: Blaine T. Mynatt, Haley R. Grant, Damian L. Martinez

Description:

Albuquerque, New Mexico civil rights law lawyer represented the Plaintiff who sued on a civil rights violation theory under 42 U.S.C. 1983.

On Sunday, November 8, 2020, sometime before 3:00 p.m., San Miguel County Sheriffs Office (SMCSO) Deputy Jayme Vigil was on patrol, traveling on Collins Drive in Las Vegas. (Doc. 87) at 4 (citing (Doc. 87-1)). Two individuals, Guillermo Rodriguez and Patricia Baca, flagged down Deputy Vigil and described a phone call Ms. Baca received from Veronica Martinez, the mother of Cristal Cervantes. Id. (citing (Doc. 87-1) at 1-2). Ms. Baca told Deputy Vigil that Ms. Cervantes' mother was requesting a welfare check was because Cristal Cervantes called her mother, indicating that Alejandro Alirez, also known as “Tuffy,” was at her residence on Peggy Lee Lane and was “irate.” Id. (citing (Doc. 40-2) at 2). Ms. Baca indicated to Deputy Vigil that Mr. Alirez was mentally ill and possibly psychotic. Id. at 5 (citing (Doc. 87-1) at 2). Mr. Rodriguez indicated to Deputy Vigil that Mr. Alirez was armed with a gun. Id. (citing (Doc. 87-1), at 3). Deputy Vigil relayed this information to SMCSO Deputy Devin Adkins, whose vehicle was located behind Deputy Vigil's. Id. at 6 (citing (Doc. 87-1) at 3). The deputies drove their units to 409 Peggy Lee Lane to conduct a welfare check. Id. (citing (Doc. 87-1) at 3). The deputies parked their marked police vehicles on the street to the left of the residence in clear view. (Doc. 101) at 4; see (Doc. 104) at 4.

At approximately 14:59:06, (2:59 PM), Deputies Vigil and Adkins arrived at Ms. Cervantes' residence. (Doc. 87) at 6 (citing (Doc. 87-1) at 2). The deputies walked up to the front door of Ms. Cervantes' residence and Deputy Adkins knocked on the security screen door. Id. (citing (Doc. 87-1) at 3). Seconds later, the deputies heard a gunshot and a woman screaming. Id. at 7 (citing (Doc. 87-1) at 3). This first gunshot after the deputies' arrival was fired at 14:59:37 (2:59:37 PM). Id. (citing (Doc. 79) at 3). Although Deputy Adkins attempted to open the security screen door, it was locked. Id. (citing (Doc. 87-1) at 3). When they heard the first shot, the deputies moved from the front to the side of the residence. Id. (citing (Doc. 871) at 3). As they were making this alteration in position, both deputies called out on the radio “shots fired.” Id. (citing (Doc. 87-1)) at 3).

After changing their position, the deputies heard three separate gunshots fired from inside the residence. Id. at 7-8 (citing (Doc. 87-1) at 3-4). After hearing the three additional rounds, the deputies moved behind Deputy Vigil's vehicle, utilizing it for cover and concealment. Id. at 8 (citing (Doc. 87-1) at 4).

Deputy Vigil retrieved her duty rifle from her trunk and utilized the trunk of her marked police vehicle as cover. (Doc. 87) at 8 (citing (Doc. 87-1) at 4). Deputy Atkins positioned himself near the rear driver's side wheel of Deputy Vigil's unit. (Doc. 87) at 8 (citing (Doc. 871) at 4). The deputies then heard rounds hitting either Deputy Vigil's or Deputy Atkins' vehicle. Id. at 8-9 (citing (Doc. 87-1) at 4-5). Deputy Vigil observed one round causing the front passenger tire to deflate, and informed radio dispatch every time a shot was fired. Id. at 9 (citing (Doc. 79) at 4). Although Plaintiffs purport to dispute County Defendants' contention that the gunfire from Mr. Alirez was pinning down the deputies, Plaintiffs do not dispute that the deputies were taking cover and were under fire, but instead note a conversation in which Deputy Vigil's boss tells her to maintain cover and she reports this fact to Deputy Atkins. (Doc. 101) at 2. This is not a genuine dispute regarding a material fact.

At approximately 3:01:37 p.m., Mr. Alirez began live-streaming his actions on Facebook. (Doc. 87) at 10. This Facebook live stream reveals multiple facts, including the following: At approximately 3:02 p.m., the live stream begins capturing Mr. Alirez's actions. See id. About eleven seconds in, Mr. Alirez states: “[Ms. Cervantes] is still alive.” Id. Starting at approximately the 00:50 seconds mark, the video reveals Mr. Alirez raising his handgun and pointing the muzzle of the gun in the direction of Ms. Cervantes' head. Id. Approximately six seconds later, the video shows Mr. Alirez fire a round at Ms. Cervantes' head, shows her head move, and shows blood splattering on the wall. Id.

The subsequent autopsy revealed that the shot to the head likely produced the fatal wound. Id. at 11 (citing (Doc. 40-4) at 2-3 (indicating “the wound to the head caused the most significant damage, including skull fractures and bleeding and injury to the brain [while] the other wounds caused minor injuries”). Plaintiffs dispute that the autopsy is conclusive evidence that Ms. Cervantes was going to die due to the head wound but offer no evidence suggesting otherwise. (Doc. 101) at 2-3. For purposes of this Motion, the Court concludes this fact is undisputed as a matter of law. See GeoMetWatch Corp. v. Behunin, 38 F.4th 1183, 1200-01 (10th Cir. 2022) (citations omitted) (nonmoving party cannot rely upon conclusory allegations, contentions of counsel, speculation, suspicion, or conjecture to defeat summary judgment). Without any factual support, Plaintiffs' counsel's speculation is insufficient to create a genuine dispute.

At approximately 03:02 p.m., at 01:08 seconds into live stream, Mr. Alirez fires another shot. (Doc. 87) at 11. Approximately fifteen seconds later, the live stream reveals him firing another shot, still at approximately 03:02 p.m. Id. At about the 2:44 mark of the live stream video, Mr. Alirez fires another shot, and yet another shot at the 2:56 mark of the live stream video. Id. Beginning at approximately the 3:11 mark of the live stream video (3:04 p.m.), Mr. Alirez states: “Oh f***, I blew her eye out dog!” Id. And at approximately the 5:28 mark of the live stream video (about 3:06 p.m.), the video's soundtrack reveals Mr. Alirez firing his gun again. Id. at 12.

Around the 07:38 mark of the live stream (about 3:08 p.m.), Mr. Alirez brandishes his gun and states that he “killed his girl [Ms. Cervantes].” Id. at 12 (citing Exhibit E to State Defendants' MPSJ No. 1, 07:38-07:43). Just over a minute later, at the 08:48 mark, Mr. Alirez reappears in the video, stating he “killed them” and “there are two dead people.” Id. (citing Exhibit E to State Defendants' MPSJ No. 1, 08:48-08:55). He immediately corrects himself and says, “one's still alive,” and he then walks over to Ms. Cervantes, puts the camera near her, and records her labored breathing. Id. (citing Exhibit E to State Defendants' MPSJ No. 1, 08:5509:09). Plaintiffs appear to dispute these facts to the extent that they indicate Ms. Cervantes was dead. See (Doc. 101) at 3. As Defendants point out, however, these facts, are supported by video evidence. The Court therefore determines these facts are undisputed. That said, Plaintiffs point out that Mr. Alirez continually corrects himself, stating at various times that Ms. Cervantes was alive. Id. And County Defendants do not appear to dispute this. See (Doc. 104) at 3.

At approximately the 18:35 mark of the live stream (from about 3:19 p.m. to 3:21 p.m.), the video soundtrack reveals another firing of the gun. (Doc. 87) at 12. At approximately the 27:54 mark of the live stream (about 3:28-3:30 p.m.), the video shows Mr. Alirez firing his gun at the police. Id. at 13 (citing Exhibit E to State Defendants' MPSJ No. 1, 27:50-27:56).

Nearly ten minutes later, around the 28:10 mark of the live stream video (3:29 p.m.), Mr. Alirez indicates that Ms. Cervantes is still alive, he had shot her in the stomach, and he focuses his phone on her, with the video revealing her labored breathing. (Doc. 101) at 8 (citing Exhibit E to State Defendants' MPSJ No. I, 28:10-28:38). Around the 30:53 mark of the live stream, Mr. Alirez states “she [Ms. Cervantes] is still alive dog, you could hear her but.. f*****s they called the cops.” Id. (citing Exhibit E to State Defendants' MPSJ No. I, 31:00-31:04). Approximately seven minutes later, at the 38:09 mark of the live-stream video (3:39 p.m.), Mr. Alirez indicates that Ms. Cervantes is still breathing. Id. (citing Exhibit E to State Defendants' MPSJ No. I, 38:09). At approximately the 50:52 mark of the live stream video (around 3:52 p.m.), Mr. Alirez's Facebook live stream ends. Id. at 9 (citing Exhibit E to State Defendants' MPSJ No. I, 50:52).

Undersheriff Padilla was not on duty the afternoon of November 8, 2020. (Doc. 87) at 13. However, he heard Deputy Vigil and Deputy Adkins radio “shots fired.” Id. Upon hearing this radio transmission, he immediately got in his unit and responded to the intersection of Collins Drive and Peggy Lee Lane, near 409 Peggy Lee Lane. Id. Undersheriff Padilla then established a command post at the intersection of Collins Drive and Peggy Lee Lane, knowing that officers from the Las Vegas Police Department (LVPD) and the New Mexico State Police (NMSP) were responding to the incident. Id. at 14. He instructed his deputies on scene to maintain a perimeter and remain behind cover because he was concerned that Mr. Alirez would shoot them. Id. Based on the situation, Undersheriff Padilla requested assistance from the NMSP tactical team because SMCSO did not have a tactical team, and he knew that NMSP's tactical team had the advanced training and the tools necessary to address the threat that Mr. Alirez posed to civilians and law enforcement. Id. Concerned Mr. Alirez would use deadly force against law enforcement officers or innocent bystanders, Undersheriff Padilla did not order or instruct SMCSO personnel to take any action against Mr. Alirez. Id. at 15.

Throughout the remainder of the incident, Undersheriff Padilla, Deputy Vigil, and all other SMCSO personnel on scene remained on the perimeter and behind cover until Mr. Alirez was eventually taken into custody by NMSP at approximately 5:26pm. Id. at 14. At no time did Deputy Vigil take any action to enter the residence where Mr. Alirez was located nor did she attempt to take Mr. Alirez into custody because he had demonstrated that he intended to harm law enforcement. Id. at 14-15. Plaintiffs dispute this fact by noting that arriving at the residence and hearing the first gunshot, Deputy Vigil's partner, Deputy Adkins, drew his handgun and attempted to open the metal security door. (Doc. 101) at 3. This fact does not controvert County Defendants' undisputed material fact.

Outcome: For the reasons discussed, the Court concludes that County Defendants' behavior was not conscience shocking, did not create the danger suffered, nor increase the vulnerability of the victim to the danger. In the alternative, County Defendants are entitled to qualified immunity because Plaintiffs have not alleged a violation of a clearly established right. Therefore, this Court grants County Defendants' Motion for Partial Summary Judgment (No. I) on the Fourteenth Amendment Substantive Due Process Claim Based on the Application of Qualified Immunity:

1) County Defendants' Motion for Partial Summary Judgment on the Fourteenth Amendment Substantive Due Process Claim Based on the Application of Qualified Immunity is granted; and,

2) The Fourteenth Amendment Substantive Due Process Claim against County Defendants is dismissed with prejudice.

Plaintiff's Experts:

Defendant's Experts:

Comments: