Bochove v. Village of Corrales

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 6, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

ER IK BO CH O V E; ELA IN E
BOCHOVE, individually and as
parents of CO NR AD BO CH OV E,
their minor son,
No. 04-2217
Plaintiffs-Appellants, (D.C. No. CIV-03-219 M CA /RLP)
(D . N.M .)
v.

VILLAGE OF CORRALES, Corrales
Police Department; M ICH AEL
TARTAR, Chief of Police of the
Village of Corrales; OFFICER TIM P.
FR AZER; O FFIC ER JER RY SOSA,
individually and in their official
capacities,

Defendants-Appellees.

OR D ER AND JUDGM ENT *

Before L UC ER O, EBEL, and M U RPH Y, Circuit Judges.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
 Plaintiffs appeal from the district court’s order directing a verdict in favor

of defendants on several of their claims. They also claim that the court erred in

excluding evidence that criminal charges against Elaine Bochove were dropped.

Separately, plaintiff Elaine Bochove appeals the jury verdict returned in favor of

defendants Tim P. Frazer and M ichael Tartar on her claims of excessive force and

failure to adequately supervise, respectively. She also claims that the jury was

improperly instructed on the legality of her arrest. W e affirm for the reasons

explained below .

Background

The events giving rise to this lawsuit began late on Saturday, February 24,

2001, in the Village of Corrales, New M exico. Plaintiffs Erik Bochove and

Elaine Bochove had agreed to host a party that evening at their home for their

thirteen-year-old son, plaintiff Conrad Bochove, and his friends.

Erik Bochove testified that at about 10:00 p.m. on the night of the party, he

“saw a rather tall, somewhat hefty girl with a mop” in the hallway of his home

“and I may have been told by her or by somebody else that somebody had puked

there, and that was about it.” A plt. App. Vol. 3 at 386. He testified that he did

not do anything, because “the party was supposed to be over,” and he turned his

“attention to getting the kids out of the house.” Id. at 387. He w ent to Conrad’s

bedroom where he saw a couple of girls, one of whom was sitting on the bed: “I

especially didn’t want any girls coming to the house . . . and after the mopping

-2-
incident and everything, I became suspicious.” Id. at 387-88. So he went to the

kitchen and “waited for the children to go home.” Id. at 388. The next thing he

recalled was Conrad coming out of his bedroom sometime between 11:00 and

11:30 p.m., “carrying another boy” who “seemed to be passed out.” Id. at 388,

390. During a hurried and confused conversation, Conrad told him “that [the boy]

had been drinking at his [own] house.” Id. at 389. M r. Bochove told Conrad to

“put him in the car and I’ll drive him home.” Id. at 390.

The boy turned out to be a neighbor, and Conrad’s tw elve-year-old

schoolmate, Kyle. Kyle’s parents were just returning from an evening out when

Erik Bochove arrived with their son passed out in the backseat of the B ochove’s

car. Kyle’s father testified that when he and his wife came home about midnight

or 12:30 a.m., his son was missing. Accounts differ at this point. Kyle’s father

testified that their doorbell rang almost immediately and Conrad told them “that

something terrible has happened to Kyle.” Aplt. App. Vol. 4 at 616. They rushed

to the Bochove’s car and found him unconscious. After they carried him inside,

Kyle’s mother, a nurse, was unable to revive him. They also noticed that he was

missing some clothing, in particular his underwear. On the other hand, Erik

Bochove and Conrad testified that Kyle’s parents were in the driveway when they

pulled up and immediately took Kyle inside without asking any questions. In any

event, the relevant point is that neither Kyle’s parents nor any of the defendants

knew where or how Kyle became unconscious and lost his underw ear.

-3-
 Uncertain as to how to receive the quickest emergency response, Kyle’s

parents contacted their neighbor and friend, Chief Tartar, who told them to call

911 and the response would come directly from Corrales. W hen Chief Tartar

arrived at Kyle’s home a few minutes later, he found Kyle lying on his back in the

entryway: “I could see that his face was pale, his lips appeared to be dark, maybe

blue, his hair was w et and I could see that he was breathing . . . and could smell

[a] faint odor of some type of alcoholic beverage . . . on his breath.” Aplt. App.

Vol. 2 at 230. W hile w aiting for the ambulance, he learned from Kyle’s parents

that Conrad and Erik Bochove had just dropped off an unconscious K yle at their

home. Officers Frazer and Jerry Sosa were immediately dispatched to the

Bochove residence.

Erik Bochove admitted that after he and Conrad dropped off Kyle, he

returned home because his “mind was on the other kids at that point. I wanted to

get back immediately.” Aplt. App. Vol. 3 at 392. 1 He testified that as soon as

1
W hile driving home, Conrad told his father w hat had happened to Kyle.
W hile at Conrad’s party, Kyle suggested that some of the other children come to
his house because his parents were out for the evening. Several children,
including Conrad, went to Kyle’s house and began drinking alcoholic beverages.
At some point Kyle began to lose consciousness and Conrad called his house and
arranged for a high school guest to pick them up. Conrad sneaked Kyle into the
Bochove home and described his efforts to hide Kyle from his parents through the
remainder of the party: “So I made sure [my parents] weren’t around, and I
brought Kyle in through my front door, and I put him in my bed. And he threw
up again in my room.” Aplt. App. Vol. 2 at 273. “I thought he had alcohol
poisoning. I was like scared really.” Id. at 273-74. “But I tried putting him in
(continued...)

-4-
they got home he told his w ife what had happened and then “went right aw ay to

[Conrad’s] bedroom, and again told the kids to get out.” Id. For his part, Conrad

testified that as soon as he got home he went to his bedroom where he and his

remaining guests “started . . . smoking mad cigarettes and a lot of pot.” A plt.

App. Vol. 2 at 282.

Erik Bochove was in the kitchen when Officers Frazer and Sosa arrived a

short time later. Relevant to the claims in this lawsuit, M r. Bochove admitted that

the officers told him that Kyle had just been dropped off from Conrad’s party and

was barely breathing. They told M r. Bochove and his wife, who had now joined

him at the door, that “they came to the house to observe the children and check on

their safety.” A plt. A pp. Vol. 3 at 394.

Elaine Bochove and Erik Bochove testified that they did not invite the

officers inside, although M rs. Bochove testified that she w ent to Conrad’s

bedroom and told them: “‘Kids, please come out, go to the living room. The

police want to see if you have some kids hurt,’” id. at 496, which supports

Officers Frazer’s and Sosa’s testimony that she told them to come inside and that

1
(...continued)
the shower and tried throwing water and tried slapping [him] around and tried
everything I could to wake him up, and he wouldn’t wake up. Then I took him
back into my room, and I put his clothes back on him because I took his clothes
off to put him in the shower.” Id. at 274-75. Erik Bochove and Elaine Bochove
testified that they never knew that Conrad had left the party or that Kyle w as in
their home.

-5-
she would get Conrad and the children. In any event, Officer Frazer testified that

when they stepped inside the Bochove’s home, he “saw at least a dozen children

just flooding from [Conrad’s] room going every single direction, some toward the

back door, some towards the living room and I noticed an odor of burning

marijuana coming from the bedroom.” Aplt. App. Vol. 2 at 102. Officer Frazer

followed M rs. Bochove to the door of the bedroom and asked to look inside

Conrad’s bedroom. M r. Bochove testified that as his wife walked towards the

bedroom “Officer Frazer followed her . . . and she turned around and barred the

way. I think Officer Frazer asked to be let into the room . . . . She refused.”

Aplt. App. Vol. 3 at 395. M rs. Bochove described the encounter with Officer

Frazer as follows: “‘M a’am, do you mind if I look inside your son’s bedroom?’ I

told him, ‘Oh, yes, I mind.’ And I stayed in front of the door, and they 2 closed

the door behind me. And he told me, ‘M a’am, if you don’t allow me to see the

bedroom, I will put you under arrest.’” Aplt. App. Vol. 3 at 498 (emphasis

added).

W hen Officer Frazer attempted to handcuff Elaine Bochove and place her

under arrest, she screamed in pain. He stopped trying to handcuff her and asked

Officer Sosa to take her to the kitchen to wait for the paramedics to arrive. After

2
The “they” who Elaine Bochove testified closed the door behind her
apparently refers to one boy and tw o girls who crawled out the bedroom window.
The girls, clad only in their underwear and low-cut tee-shirts, came back inside
the house shortly after Chief Tartar arrived.

-6-
Officer Frazer checked Conrad’s bedroom, he heard a commotion in the kitchen

and found M rs. Bochove wandering around and screaming at them to leave her

house. As soon as he approached her to get her seated, she “bolted” for her

bedroom and locked the door behind her. Aplt. App. Vol. 2 at 119. Erik Bochove

described his wife’s actions as: “I think she escaped and locked herself in the

bedroom.” Aplt. App. Vol. 3 at 396. W hen M rs. Bochove refused to unlock the

door, O fficer Frazer kicked it in and again tried to place her in handcuffs.

M rs. Bochove, who was described by her husband as “quite hysterical” at this

point, Aplt. App. Vol. 3 at 396, resisted the arrest and also tried to bite Officer

Frazer. By now, Chief Tartar had arrived and they escorted her back to the

kitchen for examination by the paramedics, who found no injuries. To effectuate

the arrest, Officer Frazer asked M rs. Bochove to come outside and help him look

for liquor bottles. She put on a coat and went outside. Again, accounts differ.

M rs. Bochove testified that for the first time that evening she believed that they

were trying to arrest her. She said that Officer Frazer put his hand on her shoulder

and threw her to the ground. Officers Frazer and Sosa testified that as soon as

they attempted to take her into custody she fell to the ground and began screaming.

This time, they did subdue her and she was transported to the police station. 3

3
W hen Officers Frazer and Sosa arrived at the police station, Elaine
Bochove continued to complain of injuries and was taken to an emergency room.
The emergency room physician found no significant injuries and testified that he
(continued...)

-7-
Chief Tartar remained at the Bochove home until all of the parents had come to

take their children home. During this process, he confirmed that several of them

were intoxicated.

Elaine Bochove was released from police custody early the next morning.

She was charged with obstructing a police officer and attempted battery on a

police officer. These charges were later dropped by prosecutors.

The District Court Proceedings

Plaintiffs’ lawyers filed an eight-count complaint asserting a myriad of

alleged civil rights violations under 42 U.S.C. § 1983 and state law, for which they

sought money damages. The Bochove family claimed that defendants violated

their federal Constitutional and state law rights rights w hen they entered their

home “without warrant, probable cause, permission or consent,” Aplt. A pp. Vol. 1

at 28, and that they remained in their home “greatly in excess of any period of

time required for legitimate police business,” thereby wrongfully depriving them

of “the lawful possession, use and enjoyment of their residence.” Id. at 31.

individually, Elaine Bochove claimed that she was wrongfully arrested and

detained, and that defendants used excessive force during the arrest. All of the

Bochoves alleged that the failure to “adequately train and supervise” O fficers

3
(...continued)
thought maybe she “was acting.” Aplee. Supp. App. at 5.

-8-
Frazer and Sosa resulted in the alleged violations of their rights, id. at 34, and they

also sought punitive damages against Officer Frazer and Chief Tartar. 4

A jury trial was held from July 26, through July 30, 2004. Prior to trial, the

district court granted defendants’ motion in limine to exclude any evidence,

testimony, or argument that the charges originally brought against Elaine Bochove

were not prosecuted. Also, at the close of all of the evidence, the district court

directed a verdict in favor of defendants on all of plaintiffs’ claims except Elaine

Bochove’s claims of excessive force and punitive damages against Officer Frazer,

and the failure to adequately supervise against Chief Tartar. The jury returned

verdicts in favor of Officer Frazer and Chief Tartar and judgment was entered on

the verdicts. This appeal followed.

Directed Verdict

Plaintiffs’ contention that the district court erred in directing a verdict on

certain of their claims because there were disputed facts that should have been

resolved by the jury is unsubstantiated because none of their statements or

arguments are supported by references to the record; instead, their opening brief

contains a twelve-page section titled “Statement of the Case,” which plaintiffs

concede is “taken from [their] complaint.” A plt. Opening Br. at 3. According to

4
Plaintiffs’ eighth claim for relief requested class certification of their
allegations against the Village of Corrales Police Department for harassment of
certain individuals. Plaintiffs voluntarily dismissed their claims for class
certification and punitive damages against Chief Tartar.

-9-
plaintiffs, “to conserve resources, citations to the record are not included in this

section. However, relevant findings by the [district court] are discussed in the

‘M aterial Facts’ section[], and some citations to the transcript of testimony are

included therein.” Id. This statement, however, is incorrect; instead their section

titled “Disputed and Undisputed M aterial Facts,” is a one-man colloquy that does

not contain any references to the record.

Standing alone, plaintiffs’ failure to support their arguments with references

to the record is sufficient grounds on which to affirm the district court’s directed

verdict. The Federal Rules of A ppellate Procedure are clear that the brief must

contain “a statement of the facts relevant to the issued submitted for review with

appropriate references to the record.” Fed. R. App. P. 28(a)(7). Likewise, the

argument in the brief “must contain contentions and the reasons for them, with

citations to the authorities and parts of the record on which appellant relies.” Id.

28(a)(9); see also SEC v. Thomas, 965 F.2d 825, 827 (10th Cir. 1992) (affirming

the district court’s order enjoining the defendant’s securities and antitrust

violations because his brief failed “to provide this court with the essential

references to the record to carry his burden of proving error.”)

This requirement is not a matter of form over substance. “W e review a

district court’s grant of a motion for directed verdict de novo.” Tanberg v. Sholtis,

401 F.3d 1151, 1156 (10th Cir. 2005). As part of this review, we must determine

whether during a jury trial “a party has been fully heard on an issue and there is no

-10-
legally sufficient evidentiary basis for a reasonable jury to find for that party on

that issue.” Fed. R. Civ. P. 50(a)(1). Because plaintiffs have failed to cite any

evidence, we cannot conduct the required review and must defer to the district

court’s ruling. See Thomas, 965 F.2d at 827.

Despite this obstacle, we nonetheless have painstakingly reviewed the

four-volume trial transcript and the district court’s twenty-page oral ruling on the

motion for a directed verdict. W e are convinced that the district court correctly

directed a verdict where appropriate and sent the remaining claims to the jury. 5

M otion in Limine

Plaintiffs’ next assignment of error concerns the district court’s order

precluding them from presenting any evidence, testimony, or argument that the

charges for which Elaine Bochove was arrested were eventually dismissed. They

argue that because their claims must be analyzed under the “totality of the

circumstances,” citing Graham v. Connor, 490 U.S. 386 (1989), the in limine order

prevented the jury from assessing all of the circumstances “surrounding all of the

events giving rise to this litigation.” Aplt. Opening Br. at 37. Plaintiffs also claim,

again without any citation to the record, that the charges were dismissed “for lack

of evidence.” Id.

5
Our “Background” section was prepared from the trial transcript and
includes testimony primarily from plaintiffs.

-11-
 In a well-reasoned five-page written order, the district court explained its

reasons for excluding this evidence. W e review evidentiary rulings excluding

evidence for an abuse of discretion. Tanberg, 401 F.3d at 1162. Under an abuse of

discretion standard a trial court’s decision will not be disturbed unless “we have a

firm and definite belief that the trial court made a clear error of judgment.” Id.

Setting aside the fact that events that took place after the conduct complained of

obviously have nothing to do with the “totality of the circumstances,” plaintiffs

have not demonstrated any error w hatsoever, let alone an abuse of discretion.

Jury Instruction

Plaintiffs also claim that the district court erred when it instructed the jury on

the excessive force claim that Elaine Bochove’s arrest was legal. As part of this

argument, they contend that the district court erred in directing a verdict in favor of

defendants on her claim for unlawful arrest and detention on the basis of qualified

immunity. We disagree.

Here, the district court ruled: “I note that the plaintiffs did not submit a jury

instruction for the Court’s consideration on [the unlawful arrest and detention]

claim and have not pointed to any authority with respect to the law on this

particular claim. I find that defendants are entitled to qualified immunity on this

claim and that will be dismissed.” Aplt. App. Vol. 5 at 899.

To defeat a defense for qualified immunity on a § 1983 claim, a plaintiff

“must establish that [a defendant’s] action in arresting [her] violated [her]

-12-
constitutional rights and that the rights violated were clearly established at the time

of the arrest . . . . W e review the district court’s decision de novo.” Tanberg,

401 F.3d at 1159.

“[A] warrantless arrest is lawful under the Fourth Amendment if there is

probable cause to believe that the person arrested has committed an offense.” Id.

This is true even where “an individual has committed even a very minor criminal

offense in [an officer’s] presence.” Id. (quoting Atwater v. Lago Vista, 532 U.S.

318, 322 (2001).

Officer Frazer testified and Elaine Bochove admitted that she refused to

allow him inside Conrad’s bedroom to investigate. She also admitted that she fled

to her bedroom and that she tried to bite him and resisted arrest. These undisputed

facts establish probable cause for her arrest for interference with a police officer

and attempted assault on a police officer. Thus, the arrest was legal and qualified

immunity was also proper.

Prejudice to the Remaining C laims Arising From the Directed Verdict

W e perceive plaintiffs’ final argument to be that the claims that were

submitted to the jury were prejudiced by the district court’s order directing a

verdict on the other claims in the case. Plaintiffs posit the issue as: “W hether the

jury’s verdict on the question of excessive force was so tainted by the removal of

the other issues from their consideration that it must be vacated and the issue

returned for a new trial and a new verdict.” Aplt. O pening Br. at 3.

-13-
 W ith good reason, plaintiffs offer no support whatsoever for this contention.

Indeed, taken to its logical conclusion, this argument would write Fed. R. Civ. P.

50 out of existence, because it would mean that a district court could never direct a

verdict on fewer than all claims in a case.

The judgment of the district court is AFFIRMED.

Entered for the Court

M ichael R. M urphy
Circuit Judge

-14-