Tanberg v. Sholtis

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 16 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

DEENA TANBERG, and VALERIE
ORTEGA,

Plaintiffs-Appellants,
v. No. 03-2231
OFFICER TOM SHOLTIS, of the
Albuquerque Police Department, in his
official and individual capacities;
CITY OF ALBUQUERQUE, a
municipal corporation,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. CIV-02-0348 LCS/LFG)

Jason Bowles, (Mark D. Jarmie with him on the brief) Sharp, Jarmie & Bowles,
Albuquerque, New Mexico, for Plaintiffs-Appellants.

Richard A. Sandoval, (Kenneth C. Downes with him on the brief) Downes &
Sandoval, P.C., Albuquerque, New Mexico, for Defendant-Appellee Tom Sholtis.

Kathryn Levy, Deputy City Attorney, City of Albuquerque, Albuquerque, New
Mexico, on the brief, for Defendant-Appellee City of Albuquerque.

Before LUCERO , McCONNELL , and ANDERSON , Circuit Judges.
McCONNELL, Circuit Judge.

Following their arrest for being in a municipal park after it was closed, the

Plaintiffs, Deena Tanberg and Valerie Ortega, brought suit asserting state and

federal claims of false arrest, a federal claim of excessive force, and state law

claims of assault and battery against the Defendants, Officer Tom Sholtis and the

City of Albuquerque. After ordering a bifurcated trial, the district court granted

Officer Sholtis’s motion for judgment as a matter of law with regard to Plaintiffs’

state and federal claims for false arrest, and the jury found for Officer Sholtis on

Plaintiffs’ claims of excessive force and assault and battery. Plaintiffs appeal the

trial court’s judgment as a matter of law dismissing their state and federal false

arrest claims, the denial of their motion for a new trial, and evidentiary rulings

made during trial. We AFFIRM.

I. Factual Background

Following a long day’s work at the Albuquerque Balloon Fiesta, Ms.

Tanberg and Ms. Ortega went to a bar to relax. Approximately three hours, three

beers, and two shots of hard liquor (each) later, they left the bar and began the

drive home. The two women stopped to buy bread for Ms. Ortega’s grandmother

and then drove to a park to take a walk. And so, armed only with a loaf of bread

for grandmother, Plaintiffs entered the woods of Bianchetti Park. It was after

2:00 in the morning. Plaintiffs encountered several teenagers in the park and

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engaged in desultory conversation with them until the teenagers began to smoke

marijuana, at which point Plaintiffs continued their walk through the park. What

Plaintiffs apparently did not encounter was a sign listing the park’s hours of

operation; the park had closed at 10:00 p.m.

Meanwhile, at approximately 2:30 a.m., Officer Sholtis arrived at the park

in a marked Albuquerque police car. Officer Sholtis was off-duty, but was

wearing an authorized duty uniform. Having noticed two vehicles parked

adjacent to the park, and aware that the park was closed, Officer Sholtis turned on

his spotlight and scanned the park, observing a group of people by the picnic

tables. Officer Sholtis turned on his emergency flashers and used his public

address system to order everyone in the park to come toward his vehicle.

Compliance with this instruction was something less than ideal. The teenagers

scattered, motivating Officer Sholtis to make a second announcement on his

public address system ordering everyone to come to his car. The second

announcement had no more effect than the first, except on a sole teenager, who,

less wily than her fellows, ran up to and entered the car next to Officer Sholtis’s

patrol car. The car was already occupied by several other teenagers. Officer

Sholtis, unaware that the young woman had been using marijuana, informed the

occupants of the car that the park was closed and advised them to go home, which

they did.

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 Ms. Tanberg and Ms. Ortega neither dispersed as effectively as the majority

of the teenagers nor approached the patrol car. Officer Sholtis spotted them

walking rapidly away from him by the basketball court. Officer Sholtis drove his

patrol car toward them, stopped, made yet another announcement on his public

address system, and exited his vehicle. Ms. Ortega began to walk toward the

patrol car in response to the command to do so, but Ms. Tanberg stepped off the

path and attempted to hide behind some trees. Ms. Tanberg’s uncooperative

behavior caused Officer Sholtis to fear for his own safety, and he ordered both

women to sit down in front of his patrol car. Neither did so. Officer Sholtis then

identified himself as a police officer and instructed Ms. Tanberg to sit down or be

put in handcuffs. Ms. Tanberg refused and began to walk past Officer Sholtis and

away from his patrol car. Concerned that Ms. Tanberg was leaving the area, and

that he would have to turn his back on one woman to pursue the other, Officer

Sholtis attempted to handcuff Ms. Tanberg, who resisted his efforts. Officer

Sholtis then used a “facedown stabilization” technique to force Ms. Tanberg to

the ground, where, despite her continued resistance, he succeeded in handcuffing

her. Aple. Br. 9. Ms. Tanberg’s glasses were dislodged and broken during the

arrest. Officer Sholtis then handcuffed Ms. Ortega without further incident.

Officer Sholtis and his arrestees remained in the park for some time, where

the women were ultimately examined by emergency medical technicians from the

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Albuquerque Fire Department. The women were later transported to a police

substation where they were kept, handcuffed, in holding cells. While the parties’

accounts of the behavior of Ms. Tanberg and Ms. Ortega during this period differ

markedly, it is agreed that Ms. Tanberg kicked her cell door a few times and Ms.

Ortega threw a chair at the cell wall. Ms. Tanberg and Ms. Sholtis were then

transported to a county detention center, and finally to a hospital. At some point

in the evening, Ms. Tanberg sustained an avulsion fracture of her right arm. Due

to a twisting motion, the ligaments in her right elbow had pulled a small piece of

bone away from the remainder of the bone. Plaintiffs insist that Officer Sholtis

was responsible for the injury to Ms. Tanberg’s arm; testimony by Kim Kearney, a

sergeant with the APD, suggested that Ms. Tanberg’s injury may have been self-

inflicted.

Plaintiffs were charged with resisting arrest, disobeying a police officer,

and being in a park after closing. The district attorney ultimately dropped these

charges and Plaintiffs filed suit against Officer Sholtis and the City of

Albuquerque.

II. Analysis

A. Directed Verdict on State False Arrest Claims

During trial the court granted Officer Sholtis’s motion for judgment as a

matter of law on Plaintiffs’ state and federal claims for false arrest. Plaintiffs

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argue that the trial court erred, and that when Albuquerque Police Department

standard operating procedures (SOPs) and the subjective mental states of

everyone involved are taken into account, Officer Sholtis lacked probable cause

to arrest them. The Federal Rules of Civil Procedure provide for judgment as a

matter of law “[i]f during a trial by jury a party has been fully heard on an issue

and there is no legally sufficient evidentiary basis for a reasonable jury to find for

that party on that issue.” Fed. R. Civ. P. 50(a)(1). We review a district court’s

grant of a motion for directed verdict de novo. Fry v. Board of County Comm’rs ,

7 F.3d 936, 938 (10th Cir. 1993).

Plaintiffs contend that they raised a number of factual disputes at trial

which precluded the grant of a motion for judgment as a matter of law. In

Plaintiffs’ formulation, Officer Sholtis’s motives for arresting Plaintiffs,

Plaintiffs’ ignorance of park closing times, and the requirements of the

Albuquerque Police Department (APD) SOPs regarding off-duty arrests raised

disputes concerning the legality of the arrest that should have been submitted to

the jury. We disagree. New Mexico law permits a police officer to make a

warrantless arrest for a misdemeanor so long as the officer has probable cause to

believe the offense has occurred in his presence. State v. Salas , 986 P.2d 482,

486 (N.M. 1999). Since the factual disputes Plaintiffs raise do not affect the

determination of whether the arrest was supported by probable cause, the trial

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court was correct to grant Officer Sholtis’s motion for judgment as a matter of

law.

Officer Sholtis apprehended the Plaintiffs for resisting arrest, disobeying a

police officer, and being in the park after it was closed. Plaintiffs attach

considerable significance to the fact that Officer Sholtis’s “main reason” for

arresting them, as revealed in his trial testimony, was their failure to obey his

commands, not their presence in the park. Plaintiffs argue that Officer Sholtis’s

motivations affect the lawfulness of the arrest because it is not clear that

Plaintiffs failed to obey his commands. Thus, Plaintiffs contend, there was a

legally sufficient evidentiary basis for a reasonable jury to find for them on their

false arrest claims, precluding a grant of judgment as a matter of law. This theory

is tenable only if the lawfulness of an arrest depends on whether the arresting

officer had a defensible primary motivation for making an arrest. It does not.

The New Mexico Supreme Court has considered the question whether a

warrantless arrest depends for its validity on the arresting officer’s perfect

understanding of the proper grounds for the arrest and has concluded that it does

not. In State v. Luna , 606 P.2d 183, 187 (N.M. 1980), abrogated on other

grounds , Horton v. California , 496 U.S. 128 (1990), a police officer arrested the

defendant for violating a municipal ordinance prohibiting minors from allowing

themselves to be served alcohol when unaccompanied by a parent. The defendant

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argued that the officer had no reasonable grounds to believe he had violated the

ordinance in question, and while the court agreed with the defendant on this

point, it nevertheless upheld the validity of the arrest. Id. at 188. The officer had

observed sufficient evidence of the misdemeanors of exhibition driving and

driving while intoxicated to provide him with reasonable grounds to arrest the

defendant on those bases, and “where there are reasonable grounds supporting the

warrantless arrest of a person for the commission of a misdemeanor, the arrest is

not invalidated because the officer gave the wrong reasons for the arrest.” Id. at

187. If an officer’s entirely mistaken understanding of which law has been

broken does not render that arrest unlawful, so long as the officer did observe an

offense for which arrest is permitted, the distinction between Officer Sholtis’s

primary, secondary, and even tertiary motivations cannot affect the lawfulness of

the arrest.

Under the Luna rule, a warrantless misdemeanor arrest is valid if the

officer has at least one valid ground justifying it. The most straightforward basis

on which Officer Sholtis could have arrested Plaintiffs was their violation of the

municipal ordinance setting the operating hours for Albuquerque public parks.

Under New Mexico law, a police officer may make a warrantless arrest for a

misdemeanor if he has probable cause to believe the offense occurred in his

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presence. 1
Boone v. State , 731 P.2d 366, 369 (N.M. 1987); City of Roswell v.

Mayer , 433 P.2d 757, 758-59 (N.M. 1967); Cave v. Cooley, 152 P.2d 886,889-90

(N.M. 1944).

An officer has probable cause to believe a misdemeanor is taking place in

his presence “when the facts and circumstances as observed by the officer through

the officer’s senses are sufficient to warrant an officer of reasonable caution to

believe that an offense is occurring.” State v. Salas, 986 P.2d 482, 486 (N.M.

App. 1999). The Albuquerque ordinance governing the operation of public parks

provides that parks close at the time posted or no later than midnight. Am. Ord.

27-1991 § 10-1-1-10. 2 Bianchetti Park closed at 10:00 p.m., and Officer Sholtis

encountered Plaintiffs in the park at 2:30 a.m. The facts and circumstances

observed by Officer Sholtis provided probable cause to believe that Plaintiffs

were committing the offense of being in a municipal park after closing, thus

permitting him to make a valid arrest.

Faced with what appears to be a perfectly clear violation of a perfectly

straightforward prohibition, Plaintiffs attempt to complicate matters by reading a

1
New Mexico law categorizes violations of municipal ordinances as petty
misdemeanors. State v. Luna , 606 P.2d 183, 187 (N.M. 1980); N.M.S.A. §§ 3-17-
1 & 30-1-6(C).
2
Violations of the Ordinance are subject to the general penalty provisions
of the Albuquerque code: a fine not exceeding $500, imprisonment not exceeding
90 days, or both. Am. Ord. 27-1991 §§ 10-1-1-99 & 1-1-99.

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specific intent requirement into the ordinance. In order to violate the ordinance,

Plaintiffs maintain, one must be in a park after closing and know that the park is

closed. Plaintiffs reason that if knowledge of the park’s closing is necessary for a

violation of the ordinance, an officer does not have probable cause to arrest

someone for a violation of the ordinance without first ensuring those present

know the park is closed. The ordinance does not require specific intent for a

violation: “No person shall remain in, occupy, or use any park in the city which is

closed to public use.” Am. Ord. 27-1991 § 10-1-1-10(A). Plaintiffs confess that

they have found “no specific New Mexico law” suggesting that the ordinance has

a specific intent requirement, but maintain that their expert’s comparison of the

ordinance to a typical type of trespass offense requires us to engraft such a

requirement onto the language of the ordinance. Aplt. Rep. Br. 6-7.

Plaintiffs’ first argument in support of a specific intent requirement is that

their expert drew an analogy between the ordinance and other trespass-type

offenses. While criminal trespass under New Mexico law can, under some

circumstances, require knowledge that the trespasser does not have permission to

be on the land, New Mexico law also defines other trespass-type offenses that

require knowledge only of the trespasser’s actions, not of their illegality. 3 The

3
The definitions of various trespass offenses demonstrate that the New
Mexico legislature distinguishes between offenses for which knowledge only of
(continued...)

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Ordinance does not contain a specific intent requirement, stating only “[n]o

person shall remain in, occupy, or use any park in the city which is closed to

public use.” Am. Ord. § 10-1-1-10. The lack of a specific intent requirement in

the statutory definition of the crime means that this is a general intent offense.

See State v. Campos, 921 P.2d 1266, 1277 (N.M. 1996) (“a general-intent crime is

one for which no additional intent to accomplish a further goal is specified.”)

Under New Mexico law general intent “requires only that the jury find the

defendant intentionally committed the acts that the statute declares unlawful.”

State v. Dunsmore, 891 P.2d 572, 574 (N.M. App. 1995). Plaintiffs do not

contend that they did not know the time or their location, or that they did not act

intentionally in being at the park at that time. Plaintiffs intended their actions and

understood the facts that made those actions illegal, and that is all that is required

to violate the Ordinance.

Finally, Plaintiffs argue that Officer Sholtis’s alleged violation of the APD

SOPs rendered his actions a false arrest under state law. The SOPs provide that

3
(...continued)
one’s actions is required, and offenses for which knowledge of illegality is
required. For example, criminal trespass “consists of knowingly entering or
remaining upon posted private property without possessing written permission
from the owner or person in control of the land.” N.M. Stat. Ann. § 30-14-1(A).
On unposted lands New Mexico law requires actual knowledge: “criminal trespass
also consists of knowingly entering or remaining upon the unposted lands of
another knowing that such consent to enter or remain is denied or withdrawn by
the owner or occupant thereof.” Id. at § 30-14-1-(B).

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an off-duty police officer may make an arrest only when “[t]here is an immediate

need for the prevention of a crime or apprehension of a suspect.” APD SOP § 2-

15-2(B). Plaintiffs argue that Officer Sholtis violated this provision of the SOPs

and that “no reasonable off-duty police officer would have believed that he had

cause to arrest Plaintiffs under the circumstances.” Aplt. Br. 35 n.1.

Plaintiffs’ suggestion conflates the requirements for a valid arrest under

state law with the standards for a proper arrest under the regulations of one

agency in one municipality. If New Mexico law made the reasonableness of an

arrest turn on compliance with SOPs, Plaintiffs’ argument might be persuasive.

But it is the existence of probable cause, rather than compliance with the SOPs,

that makes a warrantless arrest valid under New Mexico law. Salas, 986 P.2d at

486. Probable cause exists when the facts and circumstances lead a reasonably

prudent officer to believe an offense is occurring. Id. That the SOPs might

require an officer to refrain from making an arrest under these facts does not

eliminate the existence of probable cause. Thus, in light of our conclusion above

that Officer Sholtis had probable cause to arrest Plaintiffs, we cannot conclude

that his actions were a false arrest under New Mexico law, even assuming he

violated the APD SOPs.

B. Qualified Immunity and Directed Verdict on Federal False Arrest Claims

Plaintiffs also contend the district court erred in granting Officer Sholtis’s

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motion for a directed verdict on their § 1983 claim on the basis of qualified

immunity. To defeat a defense of qualified immunity, Plaintiffs must establish

that Officer Sholtis’s actions in arresting them violated their constitutional rights

and that the rights violated were clearly established at the time of the arrest.

Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995). We review the

district court’s decision de novo. Fry v. Board of County Comm’rs, 7 F.3d 936,

938 (10th Cir. 1993).

Plaintiffs allege that their arrest violated their Fourth Amendment right to

be free from unreasonable seizures. This argument fails, however, for precisely

the same reason that Plaintiffs’ state claim for false arrest failed: a warrantless

arrest is lawful under the Fourth Amendment if there is probable cause to believe

that the person arrested has committed an offense. Atwater v. Lago Vista, 532

U.S. 318, 322 (2001) (“[i]f an officer has probable cause to believe that an

individual has committed even a very minor criminal offense in his presence, he

may, without violating the Fourth Amendment, arrest the offender.”) Probable

cause exists to arrest 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.” Romero v. Fay , 45 F.3d 1472, 1476 (10th Cir. 1995)

(quoting Jones v. City and County of Denver , 854 F.2d 1206, 1210 (10th

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Cir.1988)). Having seen Plaintiffs in the park after closing, Officer Sholtis would

have little difficulty establishing both probable cause to arrest them and qualified

immunity from a claim of false arrest.

In support of their federal claim for false arrest, Plaintiffs reiterate the

arguments they made in support of their state claim: that Officer Sholtis lacked

probable cause to arrest them because the ordinance requires specific intent and

that the Albuquerque police department’s SOPs forbade off-duty officers from

making warrantless arrests for misdemeanors. These arguments are no more

availing in the federal than the state context.

Incorporating a specific intent requirement into the Ordinance would be of

no material assistance to Plaintiffs. As discussed above in relation to Plaintiffs’

state-law claim for false arrest, violating the Ordinance requires knowledge of the

facts that make prohibited conduct illegal, not knowledge that that conduct is

illegal. Plaintiffs were in the Park of their own volition, knew that they were in

the Park, and knew what time it was; their knowledge of these facts would satisfy

the general intent required by the Ordinance.

As to the fact that Officer Sholtis was off-duty, federal law is no more

amenable to the incorporation of municipal police SOPs than is its New Mexico

counterpart. Probable cause exists when the arresting officer has knowledge

sufficient to convince a prudent person that the arrestee has committed an

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offense. Romero, 45 F.3d at 1476. The existence of probable cause depends on

the arrestee’s behavior and the officer’s knowledge of it rather than on whether

the officer is on-duty. Even if it were clear that Officer Sholtis had violated the

SOPs, that violation would not transform an arrest supported by probable cause

into an unconstitutional seizure: “[o]fficials sued for constitutional violations do

not lose their qualified immunity merely because their conduct violates some

statutory or administrative provision.” Davis v. Scherer, 468 U.S. 183, 194

(1984). An SOP is not enough to create a clearly established right to be arrested

without a warrant only by an on-duty police officer; if a right is to be recognized

as a clearly established constitutional right, “there must be a Supreme Court or

Tenth Circuit decision on point, or the clearly established weight of authority

from other courts.” Herring v. Keaton, 218 F.3d 1171, 1180 (10th Cir. 2000)

(holding that probation officer’s disclosure to probationer’s sister and employer

of his HIV status violated internal policy, but that violation of policy did not

make disclosure a violation of constitutional right) (quoting Anaya v. Crossroads

Managed Care Systems, Inc., 195 F.3d 584, 594 (10th Cir.1999)). Even if Officer

Sholtis violated the SOPs, this violation would not create a violation of a clearly

established constitutional right ex nihilo. Since Plaintiffs have failed to establish

a constitutional violation, they cannot defeat Officer Sholtis’s qualified immunity

defense.

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C. Denial of Motion for New Trial Based on Allegations of Discovery Violations

Plaintiffs also appeal the trial court’s denial of their motion for a new trial

based on alleged discovery violations related to the production of Ms. Tanberg’s

broken glasses. We review a lower court’s decision to grant or deny a motion for

a new trial under an abuse of discretion standard, viewing the evidence in the

light most favorable to the prevailing party. Snyder v. City of Moab, 354 F.3d

1179, 1187-88 (10th Cir. 2003). Trial courts’ assessments of credibility are

accorded particular deference:

we give due deference to the [trial] court’s evaluation of the salience
and credibility of testimony, affidavits, and other evidence. We will
not challenge that evaluation unless it finds no support in the record,
deviates from the appropriate legal standard, or follows from a
plainly implausible, irrational, or erroneous reading of the record.

United States v. Robinson, 39 F.3d 1115, 1116 (10th Cir. 1994) (citations

omitted).

Plaintiffs allege, and Officer Sholtis does not deny, that Ms. Tanberg’s

glasses were broken during her arrest. 4 Plaintiffs insist that, in defiance of a trial

subpoena and despite repeated requests, Officer Sholtis failed to produce the

glasses until after the trial was concluded. This failure, according to Plaintiffs,

4
Ms. Tanberg testified that her glasses flew off during the arrest, Aplt.
App. 295–96, and that they were broken during the arrest, Aplt. App. 323. In
closing argument counsel mentioned the broken glasses as an aspect of damages.
Aplt. App. 802. Officer Sholtis did not dispute the fact that the glasses were
broken. Aple. Br. 24.

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deprived them of critical evidence tending to demonstrate that Officer Sholtis

used excessive force in arresting Ms. Tanberg. Plaintiffs supported their motion

for a new trial with three affidavits from trial counsel stating that Officer Sholtis

refused to produce the glasses until after completion of the trial. Officer Sholtis

supported his opposition to Plaintiffs’ motion with an affidavit from his trial

counsel indicating that the glasses were brought to the courtroom on the first day

of trial and that Plaintiffs’ counsel was made aware of their availability.

Plaintiffs acknowledge that “dueling affidavits [were filed] below regarding

whether the eyeglasses were ever brought to the courtroom during trial,” but

argue that the objective evidence supports their contention that the glasses were

not made available until after trial. Aplt Br. 45. In their eagerness to discuss the

Ninth Circuit’s test for granting a motion for a new trial on the grounds of

discovery misconduct, Plaintiffs neglect the effect on this Court of a trial court’s

credibility determination. The trial court considered these conflicting affidavits

and then denied the motion.

Regrettably, the trial court’s order does not explicitly articulate the factual

findings on which it is premised. The nature of the evidence before the court

strongly suggests, however, that a credibility determination informed the trial

court’s decision to deny Plaintiffs’ motion. In supporting or opposing the motion,

the parties principally relied on the evidence supplied by directly contradictory

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affidavits. Had the court credited Plaintiffs’ affidavits and yet still ruled against

them, some discussion of the legal grounds for denying the motion would have

been necessary. The most natural explanation for the absence of any such

discussion of legal principles in the court’s order is that the court did not find

Plaintiffs’ account of Officer Sholtis’s failure to produce the glasses to be

credible. We will not overrule a trial court’s determination of the credibility of

affidavits unless that determination is without support in the record, deviated

from the appropriate legal standard, or followed a plainly erroneous reading of the

record. Robinson, 39 F.3d at 1116. The existence of affidavits on both sides of

the question provides an assurance that the trial court’s credibility determination

has support in the record. The record does not indicate that the trial court’s

decision to credit Officer Sholtis’s evidence was plainly erroneous or irrational.

While the absence of any findings of fact or analysis in the trial court’s order is

less than ideal, there is nothing to suggest that the trial court deviated from the

appropriate legal standard. The trial court’s (presumed) determination that the

Plaintiffs’ affidavits were not credible thus survives scrutiny under an abuse of

discretion standard.

Even if the trial court based the denial of the motion on its legal merits,

rather than on the basis of a credibility determination, the outcome would be the

same. This Court reviews the denial of a motion for a new trial under an abuse of

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discretion standard. Snyder, 354 F.3d at 1187-88. Plaintiffs argue that, when

discovery abuse is alleged, a new trial must be granted if the complaining party

can show fraud by clear and convincing evidence and show that that fraud

prevented them from fully or fairly presenting their case. Aplt. Br. 42 (citing

Jones v. Aero/Chem Corp., 921 F.2d 875, 878–79 (9th Cir. 1990)). It is safe to

assume that the court did not find that Plaintiffs had proved fraud by clear and

convincing evidence. This conclusion finds support in the record in the affidavit

contradicting Plaintiffs’ account of events. The trial court’s (presumed) finding is

not plainly implausible, irrational, or erroneous, and we therefore have no basis to

overturn it under an abuse of discretion standard.

D. Exclusion of Evidence of the Albuquerque Police Department’s Standard
Operating Procedures

Plaintiffs contend that evidence related to the APD SOPs was relevant and

admissible as to their claims for excessive force and assault and battery, although

the trial court twice excluded the evidence. 5
In granting Officer Sholtis’s motion

5
The first ruling pertained only to Plaintiffs’ excessive force and assault
and battery claims; the second ruling appears to have embraced the false arrest
claims as well. Plaintiffs construe both rulings as applying to their claims for
excessive force and for false arrest. To the extent that the trial court’s rulings
embrace Plaintiffs’ false arrest claims, they would be upheld even if the evidence
were relevant to those claims. Errors in the admission or exclusion of evidence
are cause for reversal only when a party’s substantial rights have been affected.
Fed. R. Evid. 103(a); Fed. R. Civ. P. 61. In light of our determination that
Plaintiffs’ false arrest claims were properly dismissed, even when evidence of the
(continued...)

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in limine for the exclusion of evidence of the SOPs, the trial court ruled that the

SOPs were inadmissible because they were irrelevant to the federal claims and

likely to cause jury confusion regarding the state claims. After Officer Sholtis’s

expert testified that his actions conformed to his training, Plaintiffs sought to

introduce the evidence in rebuttal, but the court ruled the SOPs remained

inadmissible due to the likelihood of jury confusion and Plaintiffs’ waiver. We

review a district court's exclusion of evidence under an abuse of discretion

standard, Cartier v. Jackson , 59 F.3d 1046, 1048 (10th Cir. 1995), reversing “only

if we have a firm and definite belief that the trial court made a clear error in

judgment.” Macsenti v. Becker , 237 F.3d 1223, 1236 (10th Cir. 2001).

Our deferential review applies both to a trial court’s threshold

determination of relevance under Rule 401 and to its conclusion under Rule 403

that relevant evidence should nonetheless be excluded due to its tendency to cause

jury confusion or unfair prejudice. See U.S. v. Tan , 254 F.3d 1204, 1211 (10th

Cir. 2001) (“The district court has considerable discretion in performing the Rule

403 balancing test.”) But it is not only our deferential standard of review that

diminishes the likelihood of remand for a new trial based on a trial court’s

admission or exclusion of evidence; even if we were to find an error that

(...continued)
5

SOPs is taken into account, none of Plaintiffs’ substantial rights were affected by
the exclusion of this evidence.

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amounted to an abuse of discretion, reversible error may be predicated only upon

errors that affect a party’s substantial rights. Fed. R. Evid. 103(a); Fed. R. Civ. P.

61. Remand for a new trial is a blunt instrument with which to address the many

and multifarious evidentiary rulings made during any trial; a deferential standard

of review coupled with the distinction between harmless and reversible error

ensures that that instrument will be wielded only as necessary to protect litigants’

rights to a fundamentally fair adjudication of their disputes.

Plaintiffs sought to introduce two types of evidence related to the SOPs.

First, they wished to admit portions of the SOPs themselves into evidence and

solicit their expert’s opinion as to whether Officer Sholtis’s actions conformed to

the SOPs. Second, they proffered evidence of the APD’s internal evaluation of

and response to Officer Sholtis’s conduct. We will deal with each type of

evidence in turn. Plaintiffs maintain Officer Sholtis violated the SOP providing

that “[w]here force is warranted, officers should assess the incident in order to

determine which technique or weapon will reasonably de-escalate the incident and

bring it under control safely. Officers shall use only that force which is

reasonable and necessary to effect lawful objectives.” APD SOP § 2-52-2A. To

the extent that the first half of the SOP requires an assessment of an officer’s

choice between various techniques for de-escalation, it is beyond the scope of the

inquiry mandated by state and federal law, which require that an officer use

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reasonable, not optimal, force. See Graham v. Connor , 490 U.S. 386, 396–97

(1989) (“The calculus of reasonableness must embody allowance for the fact that

police officers are often forced to make split-second judgments—in circumstances

that are tense, uncertain, and rapidly evolving—about the amount of force that is

necessary in a particular situation”); Medina v. Cram , 252 F.3d 1124, 1133 (10th

Cir. 2001) (“[T]he reasonableness standard does not require that officers use

alternative less intrusive means . . . . [To rule otherwise] would be evaluating the

officers’ conduct from the 20/20 perspective of hindsight rather than from the

perspective of an officer making split-second judgments on the scene.”) (internal

citations and quotations omitted); Mead v. O’Connor , 344 P.2d 478, 479–80

(N.M. 1959) (“Officers, within reasonable limits, are the judges of the force

necessary to enable them to make arrests . . . . When acting in good faith, the

courts will afford them the utmost protection, and they will recognize the fact that

emergencies arise when the officer cannot be expected to exercise that cool and

deliberate judgment which courts and juries exercise afterwards”).

The second half of the SOP merely duplicates the reasonableness standard

that governs claims of excessive force under state and federal law. Federal

excessive force claims are governed by an objective standard: a use of force

violates the Fourth Amendment if it is unreasonable under the circumstances a

law enforcement officer confronts. See Graham, 490 U.S. at 388. New Mexico

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law permits an officer “to use such force as [is] reasonably necessary under all the

circumstances” to effect an arrest. Mead, 344 P.2d at 479. That the SOP

duplicates the federal and state standards for excessive force makes it less likely

that evidence of the SOPs would be relevant. Relevant evidence is that which has

“any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence.” Fed. R. Evid. 401. The jury was already obliged to

determine whether Officer Sholtis’s conduct violated the requirement of state and

federal law that he use only a reasonable degree of force in effecting Plaintiffs’

arrest. That the SOP required precisely what the law required of him does not

make it more or less likely that Officer Sholtis’s use of force was reasonable; the

SOP is therefore not relevant.

Beyond these general concerns with relevance, there are more particular

reasons to find this evidence irrelevant as to Plaintiffs’ federal claims. In the

exclusionary rule context, the Supreme Court has rejected the use of local police

regulations as a standard for evaluating constitutionality of police conduct, on the

ground that such a “basis of invalidation would not apply in jurisdictions that had

a different practice.” Whren v. United States , 517 U.S. 806, 815 (1996). That

logic would seem to apply equally to damage suits under § 1983. This Court has

consistently held that the violation of police regulations is insufficient to ground a

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§ 1983 action for excessive force. Marquez v. City of Albuquerque , — F.3d —,

2005 WL 435469, 10th Cir. (N.M.), Feb. 25, 2005; Medina , 252 F.3d at 1133

(10th Cir. 2001); Romero v. Board of County Com'rs of County of Lake, State of

Colo. , 60 F.3d 702, 705 (10th Cir. 1995); Wilson v. Meeks , 52 F.3d 1547, 1554

(10th Cir. 1995). The plaintiffs in Romero argued that a police officer had

contributed to the dangerous situation which led to his use of force, making him

liable for the use of force his own actions helped make necessary. 60 F.3d at 704.

The Romero plaintiffs supported their theory with evidence that the police

officer’s failure to handcuff the arrestee early in their encounter violated police

regulations, and contended on appeal that this evidence should have precluded the

trial court’s grant of summary judgment. Id. We affirmed the trial court’s ruling,

holding that the police officer’s failure to handcuff the arrestee was not relevant

to the § 1983 inquiry and “[did] not become relevant simply because such actions

may be required by state law and police procedures.” Id. That an arrest violated

police department procedures does not make it more or less likely that the arrest

implicates the Fourth Amendment, and evidence of the violation is therefore

irrelevant. If Officer Sholtis violated the SOP governing the use of force in

effecting arrest, that fact might well be pertinent to the Albuquerque Police

Department’s future decisions to promote, retain, or discipline him; it is not

relevant to determining if Plaintiffs’ arrest violated the reasonableness

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requirement of the Fourth Amendment.

Having determined that the SOPs themselves were not relevant to

Plaintiffs’ federal claims, the trial court determined that the SOPs might be

relevant to Plaintiffs’ state claims, but were nevertheless inadmissible. The trial

court concluded that evidence of the SOPs could cause the jury to mistake

violations of the SOPs for a constitutional violation. In excluding evidence

because of its potential to create jury confusion, the trial judge weighs the

probative value of the evidence against the likelihood that it will mislead the jury.

Fed. R. Evid. 403. We review this balancing process for abuse of discretion, and

accord considerable deference to a trial court’s determination that evidence is

likely to cause jury confusion. United States v. Guardia , 135 F.3d 1326, 1331-32

(10th Cir. 1998). Given the minimal probative value of an SOP that merely

duplicates the legal standard already under consideration, and the likelihood that

the jury could confuse legal and administrative standards, we cannot find that the

trial court abused its discretion in excluding the evidence with regard to

Plaintiffs’ state claims.

Although plaintiffs frequently wish to use administrative standards, like the

Albuquerque SOPs, to support constitutional damages claims, this could disserve

the objective of protecting civil liberties. Modern police departments are able—

and often willing—to use administrative measures such as reprimands, salary

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adjustments, and promotions to encourage a high standard of public service, in

excess of the federal constitutional minima. If courts treated these administrative

standards as evidence of constitutional violations in damages actions under §

1983, this would create a disincentive to adopt progressive standards. Thus, we

decline Plaintiffs’ invitation here to use the Albuquerque Police Department’s

operating procedures as evidence of the constitutional standard.

The trial court’s exclusion of the SOPs was particularly appropriate because

Plaintiffs wished to admit not only evidence of the SOPs themselves, but also

evidence demonstrating that the APD found that Officer Sholtis violated the SOPs

and attempted to discipline him for it. Explaining the import of these convoluted

proceedings to the jury would have been a confusing, and ultimately needless,

task. The Albuquerque Chief of Police followed the recommendation of an

internal affairs investigator to discipline Officer Sholtis both for making an

impermissible off-duty arrest and for use of excessive force. An ad hoc

committee subsequently reversed this decision. Additional testimony would have

been necessary to help the jury understand the significance of these

determinations and the procedures used to arrive at these contradictory results.

This additional testimony explaining the procedures used at each step in the

APD’s investigation and decision-making would have led the jury ever further

from the questions they were required to answer, and embroiled them in the

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dispute over whether Officer Sholtis’s actions did or did not violate the SOPs. At

the end of this time-consuming detour through a tangential and tendentious issue,

the jury would have arrived at the conclusion that the APD itself seems to have

been unable to resolve satisfactorily the question whether Plaintiffs’ arrest

violated the APD SOPs. The rules of evidence and our prior law caution against

detours as extended and fruitless as this one would almost certainly have been.

See Fed. R. Evid.611(a)(2); U.S. v. McVeigh, 153 F.3d 1166, 1191 (10th Cir.

1998) (upholding exclusion of evidence with the potential to “sidetrack the jury

into consideration of factual disputes only tangentially related to the facts at issue

in the current case.”); U.S. v. Guardia , 135 F.3d 1326, 1332 (10th Cir. 1998)

(explaining that exclusion of evidence of unrelated incidents would have

“transform[ed] the trial of two incidents into the trial of six incidents . . .

mak[ing] it difficult for the jury to separate the evidence of the uncharged

conduct from the charged conduct”).

The similarity of the SOP addressing excessive force to the objective

standard employed by state and federal law would render jury confusion even

more likely, tempting the jury to conclude that if experienced police officers

interpreted Officer Sholtis’s actions as a violation of SOPs employing the same

standards as the law, then Officer Sholtis must also have violated legal

requirements. When, as here, the proffered evidence adds nothing but the

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substantial likelihood of jury confusion, the trial judge’s exclusion of it cannot be

an abuse of discretion.

Our conclusion that the trial court correctly excluded evidence of the SOPs

on Officer Sholtis’s motion in limine is not the end of the matter. Plaintiffs argue

that, having succeeded in excluding evidence of the SOPs, Officer Sholtis opened

the door to rebuttal evidence regarding the SOPs during direct examination of his

expert witness. Officer Sholtis’s expert testified repeatedly that Officer Sholtis’s

behavior throughout his encounter with Plaintiffs conformed to his training:

Q. Have you formed an opinion as to whether the use of force in
the arrest of Ms. Tanberg and Ms. Ortega was reasonable,
proper, and consistent with police procedures in the training of
Officer Sholtis?
A. Well, yes. And I believe that it was—that his actions were
reasonable and appropriate based on Ms. Ortega’s behavior at
the scene and her attack.
Q. Okay. Did you form an opinion as to whether the use of force
in the arrest of Ms. Tanberg was reasonable, proper, and
consistent with Officer Sholtis’ training and proper police
practices?
A. Well, I found that, even though it was very quick, and I know
that there was not a lot of time elapsed, the fact is that the
decision to not cooperate was Mrs. Tanberg’s decision . . . .
And because of her behavior at the scene, I believe that the
actions of Officer Sholtis was [sic] reasonable, appropriate,
and followed his training.

Aplt. App. 726–27.

Plaintiffs argue that having admitted this testimony the trial court was

obliged to allow Plaintiffs to test the bases of the expert’s opinion that Officer

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Sholtis’s behavior conformed to his training through cross-examination regarding

the SOPs.

The trial court initially agreed, distinguishing between its earlier exclusion

of such evidence and admission of the evidence at trial once Officer Sholtis

opened the door. At the beginning of a lunch break for which the jury had been

excused, Plaintiffs’ counsel, at the court’s prompting, attempted to frame a series

of questions to be asked on cross-examination after lunch. Plaintiffs’ counsel was

apparently distracted by the frequent interruptions of Officer Sholtis’s counsel,

and eventually asked if he could return to his office and prepare written questions

for submission to the court. The trial court agreed, observing that such a process

would be “much easier than doing this.” Aplt. App. 766. Trial was scheduled to

resume at 1:00; at noon the court instructed Plaintiffs’ counsel to present written

questions to the court at 12:30. The court gave no indication that prejudice would

attach to late submission of the questions.

At 1:08, when the transcript resumes, the trial court reversed its earlier

ruling and excluded evidence of the SOPs:

I told Counsel to be back with the precise questions . . . by 12:30.
The Court came on the bench at 12:31 or 2, and nobody was here
until around 12:40 for sure. So as far as I am concerned, it’s waived
. . . . Anyway, more than that, on reflection I am not sure it’s the test
for excessive force, what a reasonable officer would to [sic] under
the circumstances, and I am not sure that this wouldn’t be confusing
to the jury anyway . . . . I am going to rule that the questions were
waived by being late and that they are 403 confusing.

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Aplt. App. 767. When Plaintiffs’ counsel, in an effort to persuade the court to

reconsider, stressed the frequency with which Officer Sholtis’s expert had

testified that Officer Sholtis acted in accordance with his training, the court

indicated that “at that time I had agreed with you . . . but 12:30 is 12:30.” Id.

When a party opens the door to a topic, the admission of rebuttal evidence

on that topic becomes permissible. See U.S. v. Burch , 153 F.3d 1140, 1144 (10th

Cir. 1998). Permissible does not mean mandatory, however; the decision to admit

or exclude rebuttal testimony remains within the trial court’s sound discretion.

Id.

We do not believe the trial court abused its discretion. While admission of

the SOPS may have been relevant to the issue of Officer Sholtis’s training, 6
with

the proper foundation, a close examination of the SOPs casts doubt on whether

they could be properly characterized as rebuttal evidence. Rebuttal evidence is

evidence which attempts to “disprove or contradict” the evidence to which it is

contrasted. Black’s Law Dictionary 579 (7th ed. 1999). Rebuttal evidence is not

any evidence an aggrieved litigant may wish to admit in response to a topic

6
The record does not show that the SOPs formed part of Officer Sholtis’s
training; Plaintiff’s first proposed question aimed to establish this point. While
we cannot attribute the record’s deficiency in this regard to the Plaintiffs, neither
can we assume that the SOPs were part of the training to which Officer Sholtis’s
expert referred in his testimony. Officer Sholtis argued that his expert’s
references to training were narrowly addressed to the expert’s own training
program for the appropriate use of force, which had been adopted by the APD.

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introduced by his opponent; whether or not rebuttal evidence is admissible

depends on “whether the initial proof might affect the case and whether the

rebuttal evidence fairly meets the initial proof.” Christopher B. Mueller & Larid

C. Kirkpatrick, 1 Federal Evidence § 12 n.2 (2d ed. 2004). See also United States

v. Stitt , 250 F.3d 878, 897 (4th Cir. 2001) (“[W]hen otherwise inadmissible,

rebuttal evidence must be reasonably tailored to the evidence it seeks to refute . . .

. [T]here must be a nexus between the purported rebuttal evidence and the

evidence that the purported rebuttal evidence seeks to rebut.”)

The language of the SOPs is sufficiently general and sufficiently similar to

the federal standard for excessive force—the SOPs call for officers to use “only

that force which is reasonable and necessary to effect lawful objectives,”APD

SOP § 2-52-2A—that admission of this evidence would have added nothing to the

evidence Plaintiffs were allowed to adduce.

But again, it is not just the SOPs themselves Plaintiffs wished to admit, but

also the opinions of others, Officer Sholtis’s superiors among them, that Officer

Sholtis’s activities did not conform to his training. While evidence of the APD’s

efforts to evaluate Officer Sholtis’s conduct and discipline him for it had the

potential to undermine the opinion that Officer Sholtis’s actions conformed to his

training, it also presented significant danger of jury confusion. For the reasons

we have already given in relation to the trial court’s initial exclusion of this

-31-
evidence, we conclude that it was not an abuse of discretion for the trial judge to

exclude the proffered rebuttal evidence on the basis of jury confusion.

Because we have determined that the trial court did not err in excluding

evidence of SOPs, we need not reach the trial judge’s alternative justification for

excluding the evidence, that ten minutes’ lateness constituted waiver. Without

deciding the question, however, we do note that the trial court’s right to “exercise

reasonable control over the mode and order of . . . presenting evidence . . . so as

to . . . avoid needless consumption of time,” Fed. R. Evid. 611(a), is to be

exercised reasonably and with a view to the overarching requirement that the rules

of evidence are to be construed not only so as to eliminate delay, but also so as to

secure fairness, see Fed. R. Evid. 102.

E. Exclusion of R. 404(b) Evidence of Other Incidents

Plaintiffs sought to admit evidence of three other occasions when Officer

Sholtis allegedly arrested individuals without probable cause or used excessive

force. The trial court granted Officer Sholtis’s motion to exclude this evidence

on the grounds that it was both irrelevant and highly prejudicial. Plaintiffs insist

that their proffered evidence is relevant under Fed. R. Evid. 404(b) to show intent

and absence of mistake as well as “consciousness and state of mind.” Aplt. Br.

55. These potential bases of relevance all tend to the same point, that Officer

Sholtis intended to use excessive force on Plaintiffs because he demonstrated

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similar intent on previous occasions. 7 We review a trial court’s exclusion of

character evidence for abuse of discretion. See United States v.

Lazcano-Villalobos, 175 F.3d 838, 846 (10th Cir.1999).

The Federal Rules of Evidence generally preclude the use of evidence of

crimes or wrongs unrelated to the conduct at issue if that evidence is offered to

prove a propensity to behave in a particular manner. If offered for a purpose

other than to demonstrate propensity, evidence of acts unrelated to the one at

issue may be admissible under Rule 404(b) if the evidence meets the four-part test

of Lazcano-Villalobos, which requires that

(1) the evidence was offered for a proper purpose; (2) the evidence
was relevant; (3) the trial court determined under Fed. R. Evid. 403
that the probative value of the evidence was not substantially
outweighed by its potential for unfair prejudice; and (4) the trial
court gave the jury proper limiting instructions upon request.

Id. at 845–46. Because Plaintiffs’ federal claim for excessive force requires

assessment of Officer Sholtis’s conduct under an objective standard, Plaintiffs

have failed to establish the relevance of evidence tending to shed light on aspects

of Officer Sholtis’s mental state to this claim.

7
Plaintiffs also urge consideration of the other incidents in relation to their
false arrest claims. In light of our determination that an arresting officer’s state
of mind is irrelevant to whether an arrest is supported by probable cause, and
therefore lawful, evidence of other acts tending to shed light on Officer Sholtis’s
state of mind is irrelevant to Plaintiffs’ false arrest claims and therefore
excludable under Fed. R. Evid. 402.

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 Under federal law, claims for excessive force are analyzed under the Fourth

Amendment reasonableness standard. Graham, 490 U.S. at 395. This standard is

an objective one to which an officer’s personal motivations in using a particular

degree of force are irrelevant: “[a]n officer’s evil intentions will not make a

Fourth Amendment violation out of an objectively reasonable use of force; nor

will an officer’s good intentions make an objectively unreasonable use of force

constitutional.” Id. at 397. Under this objective standard, evidence tending to

show Officer Sholtis’s subjective state of mind is irrelevant to the jury’s proper

inquiry.

The trial court found the evidence of other acts to be irrelevant to

Plaintiffs’ state claim for assault and battery as well. Plaintiffs reassert on appeal

their argument that the excluded similar acts evidence is relevant to their claims

for assault and battery, pointing out that assault requires proof of specific intent

under state law and that the prior acts are relevant to establish Officer Sholtis’s

intent to commit assault. However, evidence of prior acts has no bearing on

Officer Sholtis’s specific intent necessary for assault and battery. As the trial

court correctly pointed out, the intent required by state tort law is not a malicious

intent to cause harm, but rather the intent to perform the actions, combined with

the belief that certain consequences are “substantially certain to result.”

California First Bank v. New Mexico, 801 P.2d 646, 656, n.6 (N.M. 1990)

-34-
(quoting Restatement (Second) of Torts § 8A (1965)). Officer Sholtis does not

dispute that he intended the consequences of his actions in using force to

apprehend Plaintiffs, and highly prejudicial evidence offered to prove a point not

in dispute is properly excluded under Rule 403. See Old Chief v. United States,

519 U.S. 172, 184–85 (1997).

While New Mexico tort law generally may not require proof of evil

intentions for liability, state law governing the particular question of when the use

of force to effect an arrest is sufficiently excessive to expose an arresting officer

to a claim for assault and battery is less clearly objective in nature. Although

New Mexico law requires that an officer’s use of force be objectively reasonable

and reflects the same sensitivity as federal law to the split-second decisions

officers must make, an officer’s good faith appears to be the prerequisite for the

exercise of a court’s sympathetic review of an arrest: “[s]o long as officers act in

good faith and use no more force than reasonably necessary to preserve the peace,

they are accorded reasonable latitude in the use of force.” State v. Prince, 972

P.2d 859, 862 (N.M. App. 1998), see also Mead, 344 P.2d at 479–80 (N.M. 1959)

(an officer making a misdemeanor arrest is entitled “to use such force as [is]

reasonably necessary under the circumstances . . . . Officers, within reasonable

limits are the judges of the force necessary to enable them to make arrests . . . .

When acting in good faith, the courts will afford them the utmost protection”).

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 Neither the parties nor the trial court discussed whether New Mexico law

imports a subjective element into the evaluation of an arresting officer’s use of

force, but we need not determine this point of New Mexico law because the

judge’s alternative ground for excluding the evidence is adequate. The trial court

held that the prejudicial nature of the other acts evidence substantially outweighed

its probative value. We review a trial court’s exclusion of evidence under Rule

403 for abuse of discretion. United States v. Call, 129 F.3d 1402, 1405 (10th Cir.

1997). Although offered to prove intent, evidence suggesting that Officer Sholtis

had been accused of using excessive force in making other arrests could also

suggest to a jury that Officer Sholtis is prone to the use of excessive force. While

the potential of the other acts evidence to create unfair prejudice is clear, its

probative value is more difficult to gauge, a task made no easier by Plaintiffs’

vague assertion that the evidence is relevant to show “malicious intent, absence of

mistake and purposeful and unlawful conduct.” Aplt. Br. 58.

If by their argument that the proffered evidence would show intent, absence

of mistake, and deliberate unlawful conduct, Plaintiffs mean that the proffered

evidence would show that Officer Sholtis knew that he was using an objectively

unreasonable degree of force because he had done so before, the evidence they

-36-
have offered would do very little to prove their point. 8 Although the record

contains few details regarding the two other incidents involving allegations of

excessive force, those incidents do not appear to be sufficiently similar, either in

terms of the factual circumstances Officer Sholtis confronted or the techniques he

employed, to justify an inference that those incidents had put Officer Sholtis on

notice that his use of force in subduing Plaintiffs was excessive. See United

States v. Zamora, 222 F.3d 756, 762 (10th Cir. 2000) (“[T]he uncharged crime

must be similar to the charged offense . . . . The more similar the act or state of

mind is to the charged crime, the more relevant it becomes”). 9

8
The record furnishes very little information about these other incidents,
and no information of an objective character at all. One of the incidents relates to
an allegedly false arrest that was unaccompanied by any use of force, and is
therefore irrelevant to the excessive force claims. Plaintiffs’ brief supplies the
only information in the record regarding the remaining two incidents. The first
incident involved a warrantless entry into a home followed by a “forceful[]
arrest.” Aplt. Br. 56–57. Plaintiffs indicate that a federal district judge has
entered an order in a civil suit arising from this incident “finding that Defendant
Sholtis had violated the homeowners’ Fourth Amendment rights.” Id. at 57. The
order is not included in the record, nor is there any indication of which of the
homeowners’ Fourth Amendment rights was affected. The second incident
involved a traffic stop which culminated in Officer Sholtis “forcefully pull[ing]
[the driver] out of the window of his car, causing him injury.” Id. Neither of
these incidents bears a strong factual resemblance to Officer Sholtis’s arrest of
the Plaintiffs in this case.
9
Plaintiffs suggested at the trial level that Plaintiffs’ arrest was motivated
by Officer Sholtis’s belief that Ms. Tanberg and Ms. Ortega were involved in a
romantic relationship. There is nothing in the record to suggest that the other
arrests discussed presented similar concerns to Officer Sholtis.

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 Moreover, there is nothing in the record to indicate that the other two

incidents in fact involved an excessive use of force. The first incident to which

Plaintiffs point involved a warrantless entry into a private home and a “forceful[]

arrest” of a person in the home. Aplt. Br. 57. While Plaintiffs indicate that a

district judge “entered an order . . . finding [Officer] Sholtis had violated the

homeowners’ Fourth Amendment rights,” the record does not reveal the grounds

on which the court’s determination of liability rested. Id. Officer Sholtis may

have been found liable for the warrantless entry or the warrantless arrest rather

than for his use of force. The other incident to which Plaintiffs point seems even

less likely to support any conclusion regarding Officer Sholtis’s intentions as they

relate to his use of force in this case. Other than Plaintiffs’ assertion that Officer

Sholtis “forcefully pulled [a motorist] out of the window of his car, causing him

injury,” the record offers no indication that Officer Sholtis’s use of force on this

occasion was excessive. Id.

Given the lack of similarity between the other acts evidence and Plaintiffs’

arrest, and the fact that the record does not permit the conclusion Officer Sholtis

used excessive force in the other arrests, the proffered evidence would do little to

establish Officer Sholtis’s awareness that his use of force in arresting Plaintiffs

might be problematic. Indeed, there appears to be little to connect the other acts

evidence with Plaintiffs’ arrest beyond Plaintiffs’ assertions that excessive force

-38-
was used in each. If, as seems only too likely, Plaintiffs wished the jury to infer

that Officer Sholtis often intends to use excessive force when arresting the

hapless innocents who cross his path, the evidence is offered to prove propensity

rather than for a proper purpose, and was properly excluded. Fed. R. Evid.

404(a). If, on the other hand, Plaintiffs intended to show that Officer Sholtis

knew that the type and degree of force he used on Plaintiffs was excessive, the

evidence they offered would not serve to prove that point. In either event, a trial

court does not abuse its discretion in excluding evidence of only slight probative

value that creates a substantial danger of unfair prejudice.

III. Conclusion

The trial court’s grant of judgment of a matter of law as to Plaintiffs’ state

and federal claims for false arrest is affirmed. We also affirm the trial court’s

denial of a motion for a new trial based on discovery violations. The trial court

did not abuse its discretion in excluding evidence of the Albuquerque Police

Department’s Standard Operating Procedures and evidence of other acts. The

judgment below is accordingly AFFIRMED.

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