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New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 16:02:07 2012.04.26
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2012-NMCA-040
Filing Date: March 5, 2012
Docket No. 30,263
AARON PEREZ,
Plaintiff-Appellant,
v.
THE CITY OF ALBUQUERQUE,
N. SANDERS, T. NOVICKI, M. FISHER,
and MAYOR MARTIN CHAVEZ,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Linda M. Vanzi, District Judge
Kennedy Law Firm
Joseph P. Kennedy
Albuquerque, NM
for Appellant
City of Albuquerque
Robert D. Kidd, Jr., Acting City Attorney
Kathryn Levy, Deputy City Attorney
Albuquerque, NM
for Appellees
OPINION
CASTILLO, Chief Judge.
{1} Following a domestic disturbance at his residence, Aaron Perez (Plaintiff) was
arrested by three police officers (Officers) employed by the City of Albuquerque (the City).
Plaintiff filed suit against the City and the Officers claiming that the Officers used excessive
force while he was handcuffed and lying on the ground. A verdict was entered in favor of
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the Officers and the City. Plaintiff appeals the denial of his motion for directed verdict and
motion for judgment notwithstanding the verdict. We affirm.
BACKGROUND
{2} Officers Sanders, Novicki, and Fisher were called to the Plaintiff’s residence during
the early morning hours of November 28, 2003, based on a report of a domestic disturbance.
When Plaintiff became combative, the Officers tackled him to the floor inside the home.
The latter part of the arrest was recorded on videotape by Plaintiff’s wife, who was his
girlfriend at the time. Plaintiff did not immediately complain of injuries, but two months
later he sought treatment for a sore neck and back, dizziness, and a bruised ankle.
{3} Plaintiff filed suit against the Officers and the City, alleging assault and battery under
the New Mexico Tort Claims Act and claiming use of excessive force in violation of the
Fourth Amendment of the United States Constitution. Before trial, Plaintiff filed a motion
for summary judgment that was denied by the district court. After evidence was presented
at trial, Plaintiff filed a motion for a directed verdict; that, too, was denied by the district
court.
{4} At trial, Plaintiff’s position was that after he was handcuffed and had stopped
resisting, Officer Fisher threatened him with foul language, saying, “I will break your
fucking arm[,]” cocked a clenched fist in his face, and grabbed Plaintiff’s shirt collar so
forcefully as to jerk Plaintiff’s head back and forth to the extent that, according to Plaintiff,
his head hit the floor. Officer Fisher denied that Plaintiff’s head hit the floor. When
questioned initially, he could not articulate why he grabbed Plaintiff’s collar in such a way
after handcuffing him. Later, he stated the following:
[D]ue to his combativeness when he rolled over, I perceived that he was
about to kick me [which] was why I grabbed him by the shirt collar. He
needed to understand that . . . we weren’t going to put up with his behavior
anymore[,] and he needed to stop what he was doing.
The other two Officers also stated that Plaintiff continued to be combative after being
handcuffed, and the amount of force used to subdue him, in general, was necessary to
counteract his resistance, get him under control, and prevent him from rolling over and
possibly kicking the Officers. Jurors were shown the videotape of the latter portion of the
arrest, and they heard testimony from the Officers as well as from Plaintiff and his wife. The
videotape was played numerous times during trial, and each witness—all of whom were in
the house at the time of Plaintiff’s arrest—gave a different account of what was depicted on
the videotape, sometimes offering conflicting interpretations of the images.
{5} After deliberation, the jury returned a verdict in favor of the Officers. Pursuant to
Rule 1-050 NMRA, Plaintiff moved for judgment notwithstanding the verdict against Officer
Fisher. This motion was denied by the district court. We observe that in the same motion,
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Plaintiff also requested a new trial against the other two officers, but there is no challenge
to the denial of that portion of the motion.
DISCUSSION
{6} On appeal, Plaintiff makes two claims. First, he claims that the district court erred
in submitting to the jury the question of whether Officer Fisher used reasonable force
because there were no disputed facts and the question of reasonableness is one for the court
to decide. We understand this to be a challenge to the denial of Plaintiff’s motion for a
directed verdict. In his second point, Plaintiff maintains that the district court erred in not
granting his motion for judgment notwithstanding the verdict.
The District Court Did Not Err in Denying Plaintiff’s Motions for Directed Verdict and
for Judgment Notwithstanding the Verdict
{7} We review de novo the district court’s decisions on the motions for directed verdict.
See McNeill v. Burlington Res. Oil & Gas Co., 2008-NMSC-022, ¶ 36, 143 N.M. 740, 182
P.3d 121. “A directed verdict is a drastic measure that is generally disfavored inasmuch as
it may interfere with the jury function and intrude on a litigant’s right to a trial by jury.”
Torres v. El Paso Elec. Co., 1999-NMSC-029, ¶ 26, 127 N.M. 729, 987 P.2d 386, overruled
on other grounds by Herrera v. Quality Pontiac, 2003-NMSC-018, 134 N.M. 43, 73 P.3d
181. A district court should not grant a motion for directed verdict unless it is clear that “the
facts and inferences are so strongly and overwhelmingly in favor of the moving party that
the judge believes that reasonable people could not arrive at a contrary result.” Melnick v.
State Farm Mut. Auto. Ins. Co., 106 N.M. 726, 729, 749 P.2d 1105, 1108 (1988).
{8} Plaintiff’s argument is straightforward: once he was handcuffed, there was no need
for the officers to use any more force, but the officers did use additional force, and the use
of any additional force was unreasonable as a matter of law. To support his argument,
Plaintiff relies on the videotape of the incident and his reading of the holding in Scott v.
Harris, 550 U.S. 372 (2007). According to Plaintiff, Scott stands for the proposition that
when there is a videotape of an incident, the court must view “the facts in the light depicted
by the videotape”; thus, the videotape shows clear and uncontradicted proof of the use of
additional force. Plaintiff concludes that because the videotape conclusively shows the use
of additional force and because Officer Fisher gave no lawful justification for his use of
force, there are no material disputed facts about the reasonableness of the officer’s actions,
and a directed verdict in his favor is proper. Plaintiff’s reliance on Scott is misplaced.
{9} In Scott, the plaintiff motorist was injured during a high-speed chase with law
enforcement and brought a 42 U.S.C. § 1983 (1996) action alleging use of excessive force
resulting in an unreasonable seizure under the Fourth Amendment. Scott, 550 U.S. at 375-
76. Deputy Scott filed a motion for summary judgment that was denied by the district court.
Id. at 376. The United States Supreme Court reversed the denial of summary judgment
based on the videotape that had captured the events in question and that “quite clearly
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contradict[ed] . . . the story told by” the plaintiff. Id. at 378. “When opposing parties tell
two different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Id. at 380. Plaintiff contends that
there is only one interpretation of the videotape and that no reasonable factfinder could
disagree that the Officers acted unreasonably after Plaintiff was handcuffed and had become
completely compliant. The record shows otherwise.
{10} Unlike the videotape in Scott, the videotape in this case does not provide an
incontrovertible version of the interaction between Plaintiff and the Officers. First, it is not
a complete recording of the events in question. The encounter between Plaintiff and the
Officers began before the camera started rolling and only the latter portion of the struggle
was captured on videotape. As a result, the videotape itself cannot be considered
determinative or a definitive account of the full circumstances of the events of that early
morning. Further, the videotape was shown during trial and Plaintiff, his wife, and the
Officers had differing interpretations of the events depicted on the videotape. Additionally,
Plaintiff admitted that he was upset when the Officers showed up in response to the domestic
disturbance call and that before the video camera was rolling, he was cracking his knuckles
while addressing the Officers, that he told them, “You need a warrant” and “Don’t come in
my house,” and that he told them that he would “do anything I have to do to defend myself.”
Plaintiff’s wife described him as being “upset” at the time of the incident. Plaintiff also
admitted to struggling with the Officers and “trying to maybe roll over” after he was
handcuffed. While Officer Fisher denied snapping Plaintiff’s head and causing it to hit the
floor, Plaintiff could say only that he was “pretty sure” that his head “went on the floor.”
All three Officers testified that Plaintiff was combative throughout the arrest and that he was
not fully compliant even after he was handcuffed. Reasonable jurors watching the videotape
and hearing the testimony of all five witnesses could disagree over the constitutionality of
the Officers’ actions. Whether the actions of the Officers were unreasonable under the
circumstances was a question for the jury to decide. Thus, the district court properly denied
Plaintiff’s motion for a directed verdict.
The District Court Did Not Err in Denying the Motion for Judgment Notwithstanding
the Verdict
{11} “When a motion for judgment notwithstanding the verdict has been denied, the
verdict of the jury will not be disturbed unless unsupported by substantial evidence.” Page
& Wirtz Constr. Co. v. Solomon, 110 N.M. 206, 209, 794 P.2d 349, 352 (1990). A motion
for a judgment notwithstanding the verdict is an “objection to the sufficiency of the evidence
to support the jury’s verdict.” Martinez v. City of Grants, 1996-NMSC-061, ¶ 14, 122 N.M.
507, 927 P.2d 1045. “In reviewing a sufficiency of the evidence claim, this Court views the
evidence in a light most favorable to the prevailing party and disregard[s] any inferences and
evidence to the contrary.” Littell v. Allstate Ins. Co., 2008-NMCA-012, ¶ 13, 143 N.M. 506,
177 P.3d 1080 (alteration in original) (internal quotation marks and citation omitted). We
examine the record for such relevant evidence as a “reasonable mind would find adequate
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to support a conclusion.” Id. (internal quotation marks and citation omitted).
{12} Plaintiff contends that the evidence shows that Officer Fisher used force on him
when he was already handcuffed and under control. We have reviewed the evidence
presented to the jury, including the testimony of all three Officers and the various
interpretations of the videotape. After viewing this evidence in a light most favorable to the
prevailing party and disregarding any inferences and evidence to the contrary, we conclude
that it was sufficient to support the jury’s verdict. Thus, the district court acted properly in
denying Plaintiff’s motion for a judgment notwithstanding the verdict.
CONCLUSION
{13} For the foregoing reasons, the verdicts below are affirmed.
{14} IT IS SO ORDERED.
____________________________________
CELIA FOY CASTILLO, Chief Judge
WE CONCUR:
____________________________________
TIMOTHY L. GARCIA, Judge
____________________________________
J. MILES HANISEE, Judge
Topic Index for Perez v. City of Albuquerque, No. 30,263
CP CIVIL PROCEDURE
CP-DV Directed Verdict
CP-JD Judgment Nothwithstanding the Verdict
CT CONSTITUTIONAL LAW
CT-EF Excessive Force
CL CRIMINAL LAW
CL-DO Domestic Violence
EV EVIDENCE
EV-TE Taped Evidence
TR TORTS
TR-TA Tort Claims Act
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