U.S. COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 16-2216. Farrell v. Montoya. 12/27/2017. D.N.M. Judge Hartz. Excessive Force—Seizure— Submit to Officer—Compliance With Police Orders—Qualified Immunity—Ongoing Seizure.
Farrell was driving with her five children in her minivan when Officer DeTavis pulled her over for speeding. Officer DeTavis told her she could pay a fine or appear in court, but she refused to make a decision. Officer DeTavis told her to turn of her engine while he informed the dispatcher that she was refusing to make a decision. As the Officer walked to his patrol car, Farrell pulled back onto the road. Officer DeTavis followed her and the minivan stopped again, but Farrell continued to refuse to comply with the officer’s requests. Back-up officers arrived and Farrell sped of. Officer Montoya fired his gun at the minivan’s tire, but missed. After a high-speed chase, Farrell surrendered. As relevant to this appeal, the Farrells sued, claiming Officer Montoya used excessive force when he fired three shots at the minivan. The district court denied Officer Montoya’s summary judgment motion based on qualified immunity.
On appeal, the Farrells argued that their constitutional rights were violated because Officer Montoya used excessive force when he fired his gun at the minivan. When an Officer does not apply physical force to restrain a suspect, a Fourth Amendment seizure occurs only if the Officer asserts his authority and the citizen submits to the assertion. Here, the Farrells were not seized because in feeing, they were not submitting to the officers. Because they were not seized when Officer Montoya shot at their van, there can be no excessive force claim. Accordingly, the Farrells could not overcome the qualified immunity defense.
The Farrells also argued that they submitted to Officer Montoya’s show of authority when they momentarily halted when he pointed his gun at the minivan. A momentary pause is not submission, and the dash-cam video showed that there was no pause in the minivan’s departure.
The Farrells further claimed that they submitted to Officer DeTavis when they pulled over twice before Officer Montoya arrived, creating a seizure that continued at least until Officer Montoya fired his gun. The Tenth Circuit has not adopted the concept of an ongoing seizure.
The Farrells also argued that if ongoing submission is required for a seizure, they continued to submit by calling 911 while driving and looking for a police station at which to pull over. The Farrells’ alleged subjective intentions are irrelevant to their claim. When the Farrells drove away from three offers and led them on a high-speed chase, they were not manifesting compliance.
Lastly, the Farrells argued that Officer Montoya’s shots constituted excessive force regardless of their failure to submit to the offers’ show of authority. The authority that the Farrells cited does not support this claim.
The judgment was reversed.
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