Bustillos v. City of Carlsbad ( 2022 )

Appellate Case: 21-2129 Document: 010110681328 Date Filed: 05/09/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 9, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
ALBERT JEROME BUSTILLOS,
Plaintiff - Appellant,
v. No. 21-2129
(D.C. No. 2:20-CV-01336-JB-GJF)
CITY OF CARLSBAD, NEW MEXICO (D.N.M.)
and SERGEANT DANIEL VASQUEZ of
CARLSBAD POLICE DEPARTMENT,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MORITZ, BRISCOE, and MURPHY, Circuit Judges.
_________________________________
Pro se plaintiff-appellant Albert Jerome Bustillos—also known as “Stray Dog the
Exposer”—is a YouTuber who films and posts police encounters online.1 He appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint against the City of Carlsbad,
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It may
be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
1
“Although we liberally construe pro se filings, we do not assume the role of
advocate.” Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (internal quotation
omitted).
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New Mexico, and Officer Daniel Vasquez, a police officer employed by the City.
Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.
I
A. Factual Background
On April 10, 2019, officers of the Carlsbad Police Department responded to
calls that a woman with an “altered mental status” was running in and out of traffic.
The officers found the woman at Jefferson Montessori Academy in Carlsbad, New
Mexico. The officers’ encounter with the woman, and eventually Bustillos, was
captured on the body cameras of multiple officers, including Officer Vasquez
(“Vasquez Video”) and Officer Devon Stinson (“Stinson Video”). Bustillos also
captured the encounter on his cell phone.
Officer Stinson was the first to arrive at the scene and attempt talking with the
woman. Stinson Video, at 0:00–1:29.2 Officer Vasquez and Bustillos arrived a few
minutes later and began walking toward the woman while Officer Stinson was attempting
to calm her down. Id. at 1:20–1:55; Vasquez Video, at 0:00–1:00. As Officer Vasquez
and Bustillos were walking toward the woman, Officer Stinson extended his left arm in
their general direction, with his palm out, and said, “You’re scaring her off, can you guys
stand back please.” Stinson Video, at 1:25–1:30; Vasquez Video, at 0:15–1:20. In
addition, while walking next to Bustillos and toward the scene, Officer Vasquez asked
Bustillos twice to “stay over there.” Vasquez Video, at 0:15–0:30.
2
The timestamps refer to the time elapsed since the start of the recordings.
2
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The officers attempted to calm down the woman—who was experiencing some
sort of severe “altered mental status”—as they waited for medical help to arrive. See
generally Stinson Video. After several minutes, the woman became more agitated and
started running from the officers while yelling “pedophile.” Stinson Video, at 9:00–
9:26. Officer Stinson chased after her, assisted her in sitting down, and repeatedly told
her that “it’s okay.” Id. at 9:20–9:30. The woman, however, remained agitated, and she
pointed toward Bustillos and screamed, “There’s a guy right there!” Id. at 9:24–9:30.
She then repeatedly yelled in Bustillos’s direction “you can’t take my freedom” and
“fuck you, bitch,” among other things. Id. at 9:30–10:20. As the officers handcuffed her
to prevent her from running back into traffic, she said, “There’s people scaring me, it’s
wrong . . . it’s scaring me . . . I already got beat up.” Id.After the woman first screamed “there’s a guy right there!,” Officer Vasquez
began walking toward Bustillos and repeatedly ordered him to leave the scene:
Okay you’re scaring her. You need to go now. You’re going to make her
worse . . . you need to go. I’m not going to ask you again—you need to go.
You’re going to make her mental state worse. You’re going to make her
status worse, now go, or you can go to jail—you decide.
Vasquez Video, at 8:15–8:37. Bustillos refused to leave and instead told Officer
Vasquez that he was “far away” and that the woman’s mental status was “not
[Bustillos’s] problem” because he was “on public property.” Id. at 8:36–8:45.
Officer Vasquez repeated his commands for Bustillos to leave: “I’m going to ask
you one more time. You’re interfering with this investigation. Now you need to go. . . .
One more time—do you want to go to jail?” Id. at 8:45–8:51. Bustillos responded, “Do
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you want another federal lawsuit? . . . I got one pending already. Do you know who I
am?” Id. at 8:50–9:03. Officer Vasquez warned Bustillos again:
Go. You are engaging in her mental status. She just called you a
pedophile. Go. . . . I don’t need her to get worse. . . . Have some respect for
her mental status . . . . Go stand at [a nearby gate] so you don’t engage her
mental status anymore.
Id. at 9:02–9:27. Bustillos refused and instead stated that “not everybody likes us
recording them,” to which Officer Vasquez responded, “I don’t care about you recording,
but you’re not going to engage her mental status.” Id. Bustillos continued to argue with
Officer Vasquez and disregard his repeated orders. Id. at 9:27–9:38.
Officer Vasquez then ordered Bustillos multiple times to “give me your I.D.” Id.at 9:38–9:44. Bustillos remained argumentative and refused to identify himself unless
Officer Vasquez first provided him with a “reasonable articulable suspicion” of a crime.
Id. at 9:38–9:47. At this point, Officer Vasquez placed Bustillos in handcuffs. Id. at
9:48–10:02. While Bustillos was in handcuffs, Officer Vasquez attempted to explain to
Bustillos why he was handcuffed, but Bustillos kept interrupting him. Id. at 10:00–15:15.
Officer Vasquez eventually was able to explain that he “let [Bustillos] record as long as
[he] wanted to record,” but by engaging with the woman’s mental status, Bustillos was
interfering with a police investigation and refusing to comply with Officer Vasquez’s
order to leave the scene and then provide his identification. Id.After Officer Vasquez confirmed that Bustillos would indeed go to jail if he
continued to refuse to provide his I.D., Bustillos provided his identification. Id. Officer
Vasquez removed the handcuffs, which had been on for just under eight minutes. Id. at
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15:15–17:35. Officer Vasquez also gave Bustillos back his cellphone, which Officer
Vasquez had removed from Bustillos’s hand while placing him in handcuffs. Id. at 8:15–
10:02, 17:35–18:03. Officer Vasquez noted that the phone was still recording. Id. at
17:35–18:03.
B. Procedural Background
On October 15, 2020, Bustillos sued the City of Carlsbad and Officer Vasquez in
New Mexico state court, alleging that Officer Vasquez falsely arrested/imprisoned him
and unlawfully detained him in violation of the Fourth and First Amendments and state
law. ROA, at 9–13. The City and Officer Vasquez removed the case to the United States
District Court for the District of New Mexico and then moved to dismiss, or alternatively
moved for summary judgment and asserted qualified immunity. Id. at 6–28, 39–53.
On referral, the magistrate judge issued Proposed Findings and a Recommended
Disposition (“PFRD”). Id. at 56–84. The PFRD recommended that (1) the court hold
that Bustillos “ha[d] not shown that a reasonable jury could find that Defendant Vasquez
or Defendant City of Carlsbad violated [Bustillos’s] constitutional rights, clearly
established or otherwise” and, even assuming Officer Vasquez had violated Bustillos’s
Fourth or First Amendment rights, Officer Vasquez “would still be entitled to qualified
immunity”; (2) the court dismiss the federal claims with prejudice; and (3) the court
decline to exercise supplemental jurisdiction over Bustillos’s state law claims, dismissing
them without prejudice. Id. at 81–83. Bustillos objected. Id. at 85–112.
On de novo review, the district court overruled Bustillos’s objections, adopted the
PFRD in its entirety, and granted the City and Officer Vasquez’s motion. Id. at 113–24.
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It then dismissed Bustillos’s federal claims with prejudice and dismissed the state law
claims without prejudice. Id. at 123–24. The district court entered judgment by separate
order.3 Id. at 127.
Bustillos now appeals.
II
Bustillos on appeal argues that (1) the district court erred in determining that
Officer Vasquez possessed reasonable suspicion or probable cause to detain or arrest
Bustillos and compel him to identify himself and (2) the district court erred in
determining that Officer Vasquez did not violate Bustillos’s constitutional rights because
Bustillos had a clearly established First Amendment right to film the police “at the time
in question and from the place in question.”4 The threshold issue for Bustillos’s
3
We note that while the final judgment generally states that “this case is dismissed
with prejudice” and does not differentiate between Bustillos’s federal claims and his state
law claims, the district court’s memorandum opinion and order adopted the PFRD in its
entirety and explicitly ordered that Bustillos’s federal claims were dismissed with
prejudice and his state law claims were dismissed without prejudice. ROA, at 83, 113,
123–24, 127.
4
Bustillos on appeal also presents two issues that are not in his complaint or any
of his motions in the district court: (1) Officer Vasquez violated his First Amendment
right of freedom of association “to lawfully associate with and engage the unstable
woman” and (2) Officer Vasquez violated his Fourteenth Amendment right “of liberty to
freedom of movement at the time and place in question.” Aplt. Br. at 8–11. Because
Bustillos did not present these issues to the district court, they are not properly preserved
for this appeal. Even if these issues were properly before us, we note that they have no
merit or applicability. As for the freedom of association claim, the district court correctly
characterized Bustillos’s First Amendment claim as one for retaliatory arrest. See ROA,
at 119–21. As for any Fourteenth Amendment liberty of movement claim, the only time
that Bustillos’s movement was restricted was the less than eight minutes that he was in
handcuffs, and as will be discussed, Officer Vasquez had probable cause to handcuff
Bustillos because of Bustillos’s own conduct and his effect on the woman’s mental status.
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challenges is whether Officer Vasquez violated his Fourth or First amendment rights. If
Bustillos cannot show a constitutional violation, then Officer Vasquez is entitled to
qualified immunity and Bustillos’s federal claims against Officer Vasquez and the City
fail.
Under the qualified immunity doctrine, government officials performing
discretionary functions “generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established [federal] statutory or
constitutional rights of which a reasonable person would have known.” Riggins v.
Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). Accordingly, “when a defendant raises a qualified immunity
defense in a Rule 12(b)(6) motion [or a Rule 56 motion], the court must dismiss the
action unless the plaintiff shows that (1) the defendant violated a statutory or
constitutional right, and (2) the right was clearly established at the time of the violation.”
A.N. by & through Ponder v. Syling, 928 F.3d 1191, 1196 (10th Cir. 2019) (internal
quotations omitted). We review the district court’s judgment based on qualified
immunity de novo. See McCoy v. Meyers, 887 F.3d 1034, 1044 (10th Cir. 2018).
We conclude that Officer Vasquez did not violate Bustillos’s constitutional rights
and therefore is entitled to qualified immunity. We will address Bustillos’s contentions
in turn.
A. Fourth Amendment Violation
Bustillos first argues that Officer Vasquez did not have reasonable suspicion or
probable cause to detain or arrest him and compel him to identify himself. Aplt. Br. at
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11–13. The district court found that Officer Vasquez had both reasonable suspicion to
stop Bustillos and request his I.D. and then probable cause to believe that he concealed
his identity. ROA, at 77–80 (citing Mocek v. City of Albuquerque, 813 F.3d 912, 922–23
(10th Cir. 2015)). Bustillos’s argument regarding his Fourth Amendment claim focuses
solely on the fact that he had the right to record the officers’ encounter with the
woman that day. Aplt. Br. at 11–13. We will assume for the purposes of our analysis,
as the district court did, that Officer Vasquez’s handcuffing of Bustillos “enter[ed]
the realm of an arrest.” Cortez v. McCauley, 478 F.3d 1108, 1116–17 (10th Cir. 2007);
see also ROA, at 77 n.11.
As a general matter, a warrantless arrest is consistent with the Fourth Amendment
“when there is probable cause to believe the arrestee has committed a crime.” Mocek,
813 F.3d at 922. In New Mexico, resisting or abusing a peace officer in the lawful
discharge of his duties, including refusing to obey lawful police commands, is a
misdemeanor crime. N.M. Stat. Ann. § 30-22-1(D); see also United States v. Romero,
935 F.3d 1124, 1128 (10th Cir. 2019). It also is a misdemeanor to “conceal[] one’s true
name or identity . . . with intent to obstruct the due execution of the law or with intent to
intimidate, hinder or interrupt any public officer or any other person in a legal
performance of his duty.” N.M. Stat. Ann. § 30-22-3; see also Mocek, 813 F.3d at 922.
If an investigative stop is supported by reasonable suspicion of a predicate, underlying
crime, “it is well established that an officer may ask a suspect to identify himself” and
“[the] state may criminalize the suspect’s failure to comply.” Mocek, 813 F.3d at 922
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(internal quotation marks omitted) (citing Hiibel v. Sixth Judicial Dist. Court, 542 U.S.
177, 186–88 (2004)).
Consequently, to determine whether a plaintiff’s arrest for concealing his identity
comported with the Fourth Amendment, we “must first consider whether there was
reasonable suspicion to stop him and request his identity.” Id. In doing so, we look to
the “totality of the circumstances” to determine whether there was reasonable suspicion
of wrongdoing. United States v. Arvizu, 534 U.S. 266, 273–74 (2002). The question is
“whether the facts available to the detaining officer, at the time, warranted an officer of
reasonable caution in believing the action taken was appropriate.” United States v.
Winder, 557 F.3d 1129, 1134 (10th Cir. 2009) (internal quotation marks omitted) (citing
Terry v. Ohio, 392 U.S. 1, 21–22 (1968)).
If there was reasonable suspicion, we “next must determine whether probable
cause existed to believe he concealed his identity.” Mocek, 813 F.3d at 922–23.
Probable cause exists “if facts and circumstances within the arresting officer’s knowledge
and of which he or she has reasonably trustworthy information are sufficient to lead a
prudent person to believe that the arrestee has committed or is committing an offense.”
York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008) (internal quotation
marks omitted). Regardless of whether a seizure is deemed to be an arrest or
investigative detention, a finding of probable cause for an arrest incorporates the “less
demanding” finding of reasonable suspicion for an investigative detention. Kansas v.
Glover, 140 S. Ct. 1183, 1187–88 (2020).
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We conclude that Officer Vasquez did not violate Bustillos’s Fourth Amendment
rights because Officer Vasquez had reasonable suspicion and probable cause to handcuff
Bustillos. Bustillos’s challenge focuses on his right to record the officers’ encounter
with the woman that day, but his argument misses the mark. The issue was not that
Bustillos was recording the encounter—it was that he refused to comply with the
officers’ lawful commands to leave the scene and provide his identification. Viewing
the facts in the light most favorable to Bustillos, Officer Vasquez was in the lawful
discharge of his duties when he and the other officers responded to calls regarding
the woman with an “altered mental status” running in and out of traffic. Throughout
the encounter with the woman, the officers told Bustillos multiple times to stay back
because they were concerned that his presence was affecting her mental state and
worsening the situation. But Bustillos blatantly refused to comply with Officer
Vasquez’s repeated orders to leave the scene. Officer Vasquez therefore had not just
reasonable suspicion but also probable cause to believe that Bustillos had committed the
crime of refusing to obey lawful police commands. N.M. Stat. Ann. § 30-22-1(D); see
also Mocek, 813 F.3d at 922–23.
Officer Vasquez also had probable cause to believe that Bustillos committed the
additional crime of “concealing [his] true name or identity.” N.M. Stat. Ann. § 30-22-3.
After Bustillos refused to leave the scene, Officer Vasquez lawfully ordered Bustillos
multiple times to provide his I.D., but Bustillos refused to identify himself. Officer
Vazquez therefore had probable cause to believe Bustillos had committed two crimes:
refusing to obey lawful police commands and concealing his identity. In terms of
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probable cause, Bustillos’s arrest “comported with the Fourth Amendment.” Mocek, 813
F.3d at 922.
Because Bustillos has not shown a genuine factual dispute regarding
reasonable suspicion or probable cause, Officer Vasquez is entitled to qualified
immunity on Bustillos’s Fourth Amendment claim.
B. First Amendment Violation
Bustillos next argues that the district court erred in determining Officer Vasquez
did not violate Bustillos’s constitutional rights because he had a clearly established First
Amendment right to film the police “at the time in question and from the place in
question.” Aplt. Br. at 1–8. The district court properly construed Bustillos’s First
Amendment claim as one for retaliatory arrest because Bustillos asserted that Officer
Vasquez illegally arrested him for recording the police. ROA, at 66–68, 120.
The First Amendment “prohibits government officials from subjecting an
individual to retaliatory actions for engaging in protected speech.” Nieves v. Bartlett, 139
S. Ct. 1715, 1722 (2019) (internal quotation marks omitted) (citing Hartman v. Moore,
547 U.S. 250, 256 (2006)). Bustillos must establish three elements to show First
Amendment retaliation: (1) he “was engaged in constitutionally protected activity”;
(2) Officer Vasquez’s actions caused him “to suffer an injury that would chill a person of
ordinary firmness from continuing to engage in that activity”; and (3) Officer Vasquez’s
adverse action “was substantially motivated as a response to [his] exercise of
constitutionally protected conduct.” Hinkle v. Beckham Cty. Bd. Of Cty. Comm’rs, 962
F.3d 1204, 1226 (10th Cir. 2020) (internal quotation marks omitted) (citing Worrell v.
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Henry, 219 F.3d 1197, 1212 (10th Cir. 2000)). In addition to the three Worrell elements,
a First Amendment retaliation claim based on a false arrest requires a separate
“‘threshold showing’—generally, a plaintiff must show a false arrest.” Id. at 1227. In
other words, Bustillos must show a lack of probable cause.
As discussed above, Officer Vasquez had probable cause for Bustillos’s arrest,
which defeats Bustillos’s retaliatory arrest claim. Although Bustillos professes a desire
to serve the public by filming police encounters, his desire to film from a particular
location does not authorize him to break the law. Bustillos correctly observes that the
Constitution gives him the rights to free speech and protection from unreasonable
seizures. Aplt. Br. at 1–8; Aplt. Reply Br. at 1–11. But this same Constitution also
empowers a state—without violating these rights—to (1) criminalize Bustillos’s refusal
to obey lawful police commands, (2) criminalize his subsequent concealment of his
identity, and (3) arrest him upon probable cause that he committed either or both crimes.
See Nieves, 139 S. Ct. 1722–27; Romero, 935 F.3d at 1128–31. In sum, Officer Vasquez
is entitled to qualified immunity on Bustillos’s First Amendment claim because there
is no genuine factual dispute regarding probable cause.
Because Bustillos failed to demonstrate that Officer Vasquez violated his
constitutional rights, Bustillos fails to meet the first prong of the qualified immunity
analysis, and we need not address the second prong of the qualified immunity analysis
regarding clearly established law or Bustillos’s claim that the City is liable. We therefore
conclude that the district court correctly entered judgment in favor of Officer Vasquez
and the City.
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III
For the foregoing reasons, we AFFIRM the district court’s judgment dismissing
Bustillos’s federal claims with prejudice and his state claims without prejudice.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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