Appellate Case: 24-2091 Document: 56-1 Date Filed: 05/28/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 28, 2025
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
ERNESTINA CRUZ, as personal representative of the Estate of Gilbert Valencia; G.R.V., a minor, through next friend Marianna Wheeler,
Plaintiffs - Appellants,
v. No. 24-2091
CITY OF DEMING; LEE COOK JORDAN; SERGIO QUEZADA; CRISTOBAL PAZ; ADAM ARAGON; ROBERT CHAVEZ; BENJAMIN SANCHEZ; DAVID ACOSTA; ASHLEY STANDRIDGE,
Defendants - Appellees,
and
NEW MEXICO DEPARTMENT OF PUBLIC SAFETY; LUNA COUNTY; ARTURO BAEZA
Defendants. _________________________________
Appeal from the United States District Court for the District of New Mexico (D.C. No. 2:22-CV-00957-MIS-GJF) _________________________________
Erlinda O. Johnson (Joel R. Meyers, Ahmad Assed, and Richard Moran, with her on the briefs), Law Office of Erlinda O. Johnson, Albuquerque, New Mexico, for Plaintiff- Appellants. Appellate Case: 24-2091 Document: 56-1 Date Filed: 05/28/2025 Page: 2
Alan J. Dahl (Blaine T. Mynatt with him on the brief), Mynatt Springer P.C., Las Cruces, New Mexico, for Defendants-Appellees. _________________________________
Before TYMKOVICH, McHUGH, and CARSON, Circuit Judges. _________________________________
TYMKOVICH, Circuit Judge. _________________________________
A motorist on Interstate 10 near Deming, New Mexico, called 911 and reported
that there was a man in the median with a firearm who may have fired shots. Soon after,
responding police officers encountered Gilbert Valencia in a mesquite field near the
highway. Valencia matched the description of the man in the report and was holding
what appeared to be an AR-style rifle.
The officers ordered Valencia not to touch his weapon, to get on his knees, and
then to get on his stomach. Valencia, however, failed to consistently comply with the
officers’ commands and placed his hand on the weapon, shifting its position. This alerted
the officers of safety concerns and led five officers to shoot Valencia in response. He
died from his wounds.
Valencia’s estate (the Estate) brought federal and state law claims against the City
of Deming, several individual police officers, Luna County, and the New Mexico
Department of Public Safety. The officers moved for summary judgment, asserting
qualified immunity as to several of those claims. The district court granted summary
judgment on those claims, and also dismissed the Estate’s claims brought under the New
Mexico Tort Claims Act.
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We AFFIRM. We conclude the officers are entitled to qualified immunity
because their use of lethal force was objectively reasonable based on the circumstances
presented. As to the state law claims, we find the Estate fails to identify a dispute of
material fact that precludes summary judgment.
I. Background
A. Report and Identification of Valencia
On February 3, 2021, a motorist driving on Interstate 10 near Deming, New
Mexico called 911 to report a man, wearing a gray sweater and a hat, standing in the
median “shooting” a “big gun” at westbound traffic. The motorist indicated she was
unclear if the gun was real.
Officers from multiple law enforcement agencies, including the Deming Police
Department and Luna County Sheriff’s Office, responded to the report of an active
shooter. An officer spotted Valencia, who matched the reported description, walking
north of the highway. He observed Valencia carrying a weapon resembling an AR-15
rifle in front of him, pointing it to the ground. The officer shared Valencia’s location
over radio, indicating that Valencia had “an AR.”
A short time later, a group of law enforcement officers on foot encountered
Valencia in a mesquite field, located north of Interstate 10; some of the officers
recognized Valencia from previous encounters. Several officers were aware Valencia
had a history of mental illness, and that he could be unpredictable and violent. They were
also aware he sometimes carried weapons such as pellet guns and BB guns. The officers
testified that they believed Valencia was the suspect described by the central dispatch and 3 Appellate Case: 24-2091 Document: 56-1 Date Filed: 05/28/2025 Page: 4
that he was carrying a real firearm. One of the officers testified Valencia informed him
that “he had been ‘out shooting rabbits,’ which confirmed [his suspicion] that he was
carrying a firearm.” App. Vol. I, 174.
B. The Fatal Shooting
Approaching Valencia, multiple officers shouted commands and more than one
officer told him to put his hands up. Valencia momentarily put his hands up, but then
brought his hands back down and crossed his arms in front of his chest. The officers
again ordered Valencia to put his hands up and drop to his knees, and he complied. After
getting to his knees, Valencia touched the gun hanging from a shoulder strap at his left
side with his left hand and moved the gun so that it was positioned in front of his
stomach. The officers shouted to not reach for the gun and to let go, and Valencia again
put his hands above his head. Officers commanded Valencia to keep his hands up and
get on his stomach. Instead of complying, Valencia reached for his pocket and withdrew
what appeared to be a wallet and flashed it at the officers as if it were a badge, and then
placed it back in his pocket.
At this point, Valencia was on his knees with his hands free and his weapon on the
ground in front of him, slightly off to the side. The officers continued to command
Valencia to get on his stomach. Valencia then looked down, leaned forward slightly,
placed his left hand on the weapon near the barrel, and used his left hand to lift the
weapon off the ground and raise it towards his body. He then placed his right hand on
the weapon closer towards the grip and removed his left hand from the barrel. This
motion caused the barrel to rotate towards the officers, although it did not fully rotate so
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that it was pointing at the officers. Valencia continued to lean forward, placing his left
hand on the ground in front of him. As the barrel rotated towards the officers, however,
several of them feared for their safety and for the safety of the officers around them, and
shot Valencia in response.
The entire encounter at the mesquite field lasted at least 44 seconds and was
captured by at least two body-worn cameras. A total of 20 shots were fired by five
officers, and Valencia was hit approximately 10 times. Valencia died from the gunshot
wounds.
It was later determined that Valencia was carrying an airsoft gun with an orange
tip that had been painted black. The weapon had several features indicating it was not an
operable firearm, such as residual orange paint on the muzzle, a missing handguard on
the forward section of the barrel, an empty magazine well, and no stock or buffer tube
attached to the rear of the gun. An investigation by the state police located casings from
the officers at distances ranging approximately 31 to 41 feet from where Valencia
collapsed.
C. Procedural Background
The Estate’s suit began in state court with state law claims against the Deming
Police Department, individual officers, Luna County, and the New Mexico Department of
Public Safety. Defendants moved to dismiss the Deming Police Department under the
theory that it is not subject to suit as a municipal or county department or subdivision.
Before the state court could rule on that motion, the Estate filed an amended complaint
dismissing the Deming Police Department and adding City of Deming as a defendant.
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The amended complaint also added federal claims along with its previously alleged state
law claims. Defendants removed the case to the district court based on federal question
jurisdiction.
The City of Deming and the officers moved for summary judgment on all of the
Estate’s claims.1 Finding no disputed material facts based on deposition testimony, other
record evidence, or bodycam footage, the district court granted summary judgment.
The Estate appeals the district court’s decision dismissing their claims under the
New Mexico Tort Claims Act (Counts I–III), and their excessive force claim under the
Fourth Amendment (Count VI) against the officers.2 The Estate argues the district court
erred in granting summary judgment because: (1) evidence was improperly weighed,
1 To be clear, the City of Deming and the officers filed two separate summary judgment motions. The first motion sought summary judgment based on qualified immunity for Counts I, II, III, and VI. The second motion sought summary judgment as to the remaining counts. 2 On appeal, the Estate filed an opposed motion for judicial notice of state court records and to include those records in a supplemental appendix. In its reply brief, the Estate cites portions of Defendants’ motion and reply filed in state court to support their assertion that Defendants violate the doctrine of judicial estoppel. The Estate’s argument fails. To begin, and as the Estate concedes in its motion, Aplt. Mot. ¶ 5, this argument was available and could have been raised in the district court but was not asserted until the Estate’s reply brief on appeal. See United States v. Leffler, 942 F.3d 1192, 1197 (10th Cir. 2019) (“[W]e generally do not consider arguments made for the first time on appeal in an appellant’s reply brief and deem those arguments waived.” (citation omitted)). Importantly, we see no such violation here. Defendants argued in state court that the Deming Police Department should be dismissed as an entity because it cannot be sued generally. And as we explain infra Section II.B, Defendants later argued in federal court that the City of Deming cannot be sued under the New Mexico Tort Claims Act because the statute only applies to law enforcement officers. Those positions are not inconsistent and do not violate the doctrine of judicial estoppel. We therefore deny the Estate’s motion and proceed with the current record in deciding this appeal. 6 Appellate Case: 24-2091 Document: 56-1 Date Filed: 05/28/2025 Page: 7
(2) the declarations of the officers were erroneously credited over the Estate’s experts,
and (3) inferences from the video footage were not resolved in the Estate’s favor. In
short, the Estate argues there are numerous genuine material facts that preclude summary
judgment.
II. Discussion
We first consider whether the district court erred in dismissing the Estate’s
excessive force claim and granting qualified immunity for the officers. We then consider
whether the district court erred in dismissing the Estate’s claims under the New Mexico
Tort Claims Act.
A. Excessive Force Claim
The Estate argues the district court accepted the officers’ version of events and
failed to view evidence in the light most favorable to the nonmovant party. They assert
the officers used objectively unreasonable force under the totality of circumstances.
1. Standard of Review
“This court reviews a grant of summary judgment on qualified immunity grounds
de novo, applying the same standard as the district court.” Becker v. Bateman, 709 F.3d
1019, 1022 (10th Cir. 2013) (citation omitted). “Summary judgment is appropriate when
‘the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.’” Id. (quoting FED. R. CIV. P. 56(a)). “On
summary judgment the inferences to be drawn from the underlying facts must be viewed
in the light most favorable to the party opposing the motion.” Id. (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). 7 Appellate Case: 24-2091 Document: 56-1 Date Filed: 05/28/2025 Page: 8
“The weighing of evidence, the reconciliation of inconsistent testimony, and the
assessment of a witness’ credibility is solely within the province of the jury.” Allen v.
Wal-Mart Stores, Inc., 241 F.3d 1293, 1297 (10th Cir. 2001). At the same time, “[w]e do
not have to accept versions of the facts contradicted by objective evidence, such as video
surveillance footage.” Est. of Beauford v. Mesa Cnty., Colo., 35 F.4th 1248, 1261 (10th
Cir. 2022) (citing Scott v. Harris, 550 U.S. 372, 380 (2007)); see also Bond v. City of
Tahlequah, Oklahoma, 981 F.3d 808, 813 n.7 (10th Cir. 2020) (“Because this is an appeal
from a grant of summary judgment, we describe the facts viewing the video in the light
most favorable to the Estate, as the nonmoving party.” (citing Emmett v. Armstrong, 973
F.3d 1127, 1131 (10th Cir. 2020))), cert. granted, judgment rev’d on other grounds, 595
U.S. 9 (2021).
2. Legal Framework
“When a defendant asserts qualified immunity at summary judgment, the burden
shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and
(2) the constitutional right was clearly established.” Martinez v. Beggs, 563 F.3d 1082,
1088 (10th Cir. 2009). The parties agree it was clearly established that force is
unreasonable if an officer’s reckless and deliberate conduct is the immediate cause of the
need to use lethal force on a suspect.3 Our focus then is whether the officers violated
Valencia’s constitutional right.
3 See Est. of Ceballos v. Husk, 919 F.3d 1204, 1214 (10th Cir. 2019) (“[A]n officer violates the Fourth Amendment when his or her reckless or deliberate conduct results in the need for lethal force . . . .”). 8 Appellate Case: 24-2091 Document: 56-1 Date Filed: 05/28/2025 Page: 9
In considering whether a constitutional right was violated, we treat excessive force
claims as “seizure[s] subject to the reasonableness requirement of the Fourth
Amendment.” Palacios v. Fortuna, 61 F.4th 1248, 1256 (10th Cir. 2023); see also Est. of
Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1259 (10th Cir. 2008) (citing Graham v.
Connor, 490 U.S. 386, 395 (1989)). To establish a constitutional violation, the plaintiff
must demonstrate the officers’ actions were objectively unreasonable “in light of the facts
and circumstances confronting them, without regard to their underlying intent or
motivation.” Palacios, 61 F.4th at 1256 (quoting Graham, 490 U.S. at 397). The
“‘reasonableness’ of a particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Est. of
Larsen, 511 F.3d at 1259 (quoting Graham, 490 U.S. at 396).
We assess objective reasonableness based on “whether the totality of the
circumstances justified the use of force,” and “pay careful attention to the facts and
circumstances of the particular case.” Id. at 1260 (quoting Sevier v. City of Lawrence, 60
F.3d 695, 699 (10th Cir. 1995)); Casey v. City of Fed. Heights, 509 F.3d 1278, 1281
(10th Cir. 2007) (“The ultimate question is whether the officers’ actions are objectively
reasonable in light of the facts and circumstances confronting them.” (cleaned up)).
“Deadly force is justified under the Fourth Amendment if a reasonable officer in
Defendants’ position would have had probable cause to believe that there was a threat of
serious physical harm to themselves or to others.” Est. of Larsen, 511 F.3d at 1260
(citation omitted).
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In determining whether a use of force is reasonable, we consider: (1) the severity
of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of
the officers or others; and (3) whether he is actively resisting arrest or attempting to
evade arrest by flight. Flores v. Henderson, 101 F.4th 1185, 1194 (10th Cir. 2024)
(citing Graham, 490 U.S. at 396).
3. Consideration of the Graham Factors
With that background, we consider whether the officers’ use of force was
objectively unreasonable based on the totality of the circumstances under the Graham
factors. In so doing, we review inferences in the Estate’s favor and assess whether there
are genuine disputes as to material fact that must be resolved by a jury. Because we find
“[the Estate] cannot overcome the presumption of immunity as to the first prong”—that
the officers violated Valencia’s constitutional right—we find the officers entitled to
qualified immunity. Est. of Taylor v. Salt Lake City, 16 F.4th 744, 758 (10th Cir. 2021)
(citation omitted). The Estate’s excessive force claim therefore fails.
a. Graham Factor 1: Severity of Crime at Issue
“[T]he first Graham factor weighs against the plaintiff when the crime at issue is a
felony, irrespective of whether that felony is violent or nonviolent.” Vette v. K-9 Unit
Deputy Sanders, 989 F.3d 1154, 1170 (10th Cir. 2021) (citations omitted).
We agree with the district court that this factor weighs in favor of the officers.
Here, the officers were made aware that an individual in a gray sweater and hat—a
description that matched Valencia—was seemingly shooting a gun in the middle of the
highway. Such an offense would be a crime of aggravated assault with a deadly weapon,
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which is a violent felony in New Mexico. See N.M. Stat. Ann. § 30-3-2 (“Aggravated
assault”); N.M. Stat. Ann. § 30-3-8 (“Shooting at dwelling or occupied building; shooting
at or from a motor vehicle”). Few crimes are more serious than an active shooter on an
Interstate highway. Even assuming the officers were made aware that Valencia had not
yet fired shots, the crime at issue does not become any less severe because the officers
would have reasonably believed Valencia could, at any time, choose to fire shots.
b. Graham Factor 2: Immediate Threat to Safety
The second Graham factor is considered the most important and fact-intensive
factor. In assessing the degree of threat facing officers, we consider several nonexclusive
factors. These include: (1) whether the officers ordered the suspect to drop his weapon,
and the suspect’s compliance with police commands; (2) whether any hostile motions
were made with the weapon towards the officers; (3) the distance separating the officers
and the suspect; and (4) the manifest intentions of the suspect. Est. of Larsen, 511 F.3d at
1260. We consider each in turn.
i. Compliance with Orders
This factor favors the officers. Valencia’s encounter with the officers, during
which Valencia failed to fully comply with orders, was approximately 44 seconds. While
Valencia complied with some orders after repeated commands, such as to raise his hands
or get on his knees, he did not immediately comply or continue to comply with others.
For example, the officers commanded Valencia to keep his hands up or show his hands
and to not touch his gun. Valencia, however, touched his weapon, lowered his hands, and
grabbed and flashed his wallet.
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The Estate argues that multiple different commands were ordered by the officers,
which confused Valencia. Bodycam videos demonstrate, however, that the commands
were not contradictory to the point where it would have confused Valencia. Indeed, the
videos show multiple officers ordered Valencia to “get on your stomach bro” or “get on
the . . . ground” or “get on your stomach now.” As recently held by this Circuit, an order
to “raise his hands” does not conflict with an order to “get on the ground.” Alcala v.
Ortega, 128 F.4th 1298, 1308 & n.8 (10th Cir. 2025) (affirming qualified immunity for
an officer because he reasonably but fatally shot the defendant when the latter “disobeyed
[commands] for a full six seconds before making his sudden threatening movement” as if
drawing a gun).
Nor do we find persuasive that Valencia’s mental health conditions were not
properly considered. We recently held the argument that an officer “should have
realized” a plaintiff could have been “dazed, injured, mentally unwell, or otherwise
impaired” is unconvincing because “that possibility takes a back seat to the [officers’]
legitimate fear that [they were] about to be shot.” Id.
ii. Hostile Motions with a Weapon
The parties disagree most as to this Larsen factor. The Estate argues Valencia was
complying with the officers’ orders to get on his stomach and was thus shifting his toy
gun to his side before leaning forward. They argue a reasonable officer would have
understood this play of events to not be hostile. On the other hand, the officers contend
Valencia disobeyed their orders and touched or grabbed his weapon multiple times,
making objectively hostile motions. Ultimately, we find this factor favors the officers.
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Two recent Tenth Circuit cases are informative. In Estate of Taylor v. Salt Lake
City, 16 F.4th 744 (10th Cir. 2021), we held officers acted reasonably in using lethal
force on a suspect who had been noncompliant with their commands. There, officers
were told by dispatch that a man had flashed a gun; the officers then identified a suspect
who matched the description provided by the dispatch. Despite orders to stop and show
his hands, the suspect walked away and was noncompliant with the officers’ orders. The
suspect’s hands were concealed in front of his waistband and appeared to be “digging
there” as if manipulating something. When the suspect suddenly, without verbal
warning, lifted his shirt and “virtually simultaneously withdrew his right hand from his
waistband” as if drawing a gun, we recognized that the officer only had a split-second to
evaluate the situation. Id. at 747, 767. Under such circumstances, we found the use of
lethal force was reasonable, even though the individual was later found to be unarmed.
Id. And in Palacios v. Fortuna, 61 F.4th 1248 (10th Cir. 2023), we held that officers
acted reasonably in firing at a suspect who had picked up his gun for the third time,
despite commands not to do so. We made this determination even though the suspect had
not fired his weapon, given that the suspect kept the gun on his waistband against
warnings to drop the weapon, and the fact that he was “suspected of having just used it to
threaten at least two people.” Id. at 1259.
We can extrapolate from the two cases that “a reasonable officer would see a
suspect who just picked up his gun and brought it in front of him, ignoring officer
commands, as making a hostile motion.” Id. at 1260. “[S]imply because a suspect has
not yet fired a weapon does not mean that he will not do so in the future, particularly
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when intentionally keeping his gun with him.” Id. at 1259 (“[A] reasonable officer would
not consider that [the suspect] was going to discard his weapon, given that he picked it up
three times.”). Moreover, an officer’s actions can still be objectively reasonable even if a
suspect turns out to be unarmed because an officer can act reasonably even with a
mistaken view of the facts. Id. at 1260 (citing Est. of Taylor, 16 F.4th at 765–76). And if
“an officer reasonably, but mistakenly, believed that a suspect was likely to fight back . . .
the officer would be justified in using more force than in fact was needed.” Est. of
Larsen, 511 F.3d at 1260 (citation omitted) (finding a reasonable officer need not await
the “glint of steel” before taking self-protective action; by then, it is “often . . . too late to
take safety precautions.” (citation omitted)); see also Alcala, 128 F.4th at 1308–09
(finding an officer to have made a reasonable, split-second decision when he fatally shot
a suspect because the latter made sudden movements as if he were going to pull out a
gun, even though he was not visibly carrying a firearm).
Here, based on the totality of circumstances, we consider that: (1) the officers
mistakenly believed Valencia had a real firearm; (2) some of the officers were aware
Valencia was mentally unstable and could be unpredictable or violent,4 although he had
not been violent towards officers in the past; (3) some of the officers were aware
Valencia sometimes carried pellet guns or BB guns; (4) Valencia did not consistently
4 While “[t]he mentally ill or disturbed condition of the suspect is a relevant factor in determining reasonableness of an officer’s responses to a situation . . . . officers are not required to use alternative, less intrusive means if their conduct is objectively reasonable.” Est. of Ceballos, 919 F.3d at 1214 (citations and internal quotations omitted). 14 Appellate Case: 24-2091 Document: 56-1 Date Filed: 05/28/2025 Page: 15
comply with the officers’ orders and touched or moved his firearm more than once,
against the officers’ commands; and (5) Valencia lifted his weapon and shifted its
position slightly towards the officers. Construing inferences in Valencia’s favor, we
assume the officers knew Valencia did not open fire at traffic. At the same time, we
consider the testimony of the officers, which indicate that they thought Valencia’s final
movement was dangerous and threatened the safety of those at the scene. We find these
factors support that the officers were reasonable in believing Valencia was making hostile
motions with his weapon.
iii. Distance between Officers and Valencia
The parties agree the exact distance between the officers and Valencia is unknown
at the time Valencia was shot, and thus the district court did not weigh this factor. The
district court held, however, that the lack of cover in the mesquite field would likely
weigh in favor of the officers. We agree that this factor slightly favors the officers.
Based on the alleged short distance between Valencia and the officers, the Estate
argues the officers had the opportunity to observe Valencia possessed only a toy rifle,
especially given some officers recognized Valencia and knew he had a history of mental
illness. But as we explain in further detail below, it is reasonable that the officers would
not have been able to carefully assess whether Valencia had a toy rifle in a high-pressure
situation, particularly based on the other circumstances at play.
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iv. Officers’ Assessment of Valencia’s Manifest Intentions
For the last factor, we consider “how a reasonable officer on the scene would have
assessed the manifest indicators of [Valencia’s] intentions.” Est. of Taylor, 16 F.4th at
770. It is not what Valencia “subjectively intended[,] be it with his hand movements or
otherwise.” Id. (cleaned up).
For many of the same reasons discussed, we find this factor favors the officers—a
reasonable officer in the same position would conclude Valencia made hostile gestures
and manifested hostile intent. The officers had received a report that an individual
suspected to be Valencia was in the middle of the highway with a firearm. Even if we
assume the officers were made aware that Valencia had not fired any shots, some officers
recognized Valencia as a mentally unstable individual known to be unpredictable and
potentially violent. And Valencia did not consistently comply with the officers’
commands to not touch his weapon and to keep his hands up; and his final motion was
shifting his weapon slightly towards the officers.
The Estate argues Valencia was shot while attempting to comply with the order to
get on his stomach by moving his gun out of the way. Indeed, analyzing the video by still
frame, it is plausible to infer in the Estate’s favor that Valencia was attempting to comply
with the command to get on his stomach, and in the process, tried to move the weapon.
Yet, Valencia’s subjective intent is not the relevant inquiry. Instead, “[t]he
reasonableness of a particular use of force must be ‘judged from the perspective of a
16 Appellate Case: 24-2091 Document: 56-1 Date Filed: 05/28/2025 Page: 17
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’” Id. at
759 (quoting Bond, 981 F.3d at 821).
Moreover, this Circuit has held that “police officers are often forced to make split-
second judgments5—in circumstances that are tense, uncertain, and rapidly evolving—
about the amount of force that is necessary in a particular situation,” and thus “the
reasonableness of the officer’s belief as to the appropriate level of force should be judged
from that on-scene perspective.” Est. of Larsen, 511 F.3d at 1259–60 (citation omitted
and cleaned up). And because officers must make “split-second decision[s],” the
“Constitution permits officers to make reasonable mistakes” as they “cannot be mind
readers and must resolve ambiguities immediately.” Est. of Valverde ex rel. Padilla v.
Dodge, 967 F.3d 1049, 1062 (10th Cir. 2020) (citation omitted). So even though
Valencia may have subjectively intended to move his gun, a reasonable officer on the
scene would have assessed the situation as dangerous and threatening to himself and
others. See id. (“Perhaps a suspect is just pulling out a weapon to discard it rather than to
fire it. But waiting to find out what the suspect planned to do with the weapon could be
suicidal.”).
Still, the Estate argues the district court ignored the declaration of Officer Acosta,
who testified that he did not shoot Valencia because he did not feel threatened. They
assert Officer Acosta’s testimony suggests the officers’ lethal force was objectively
unreasonable. But “the failure of the other officers to fire is of little relevance.” Id. at
5 “Qualified immunity protects these types of split-second decisions, as long as the decisions are reasonable.” Alcala, 128 F.4th at 1310 (citation omitted). 17 Appellate Case: 24-2091 Document: 56-1 Date Filed: 05/28/2025 Page: 18
1065 (citation omitted). To add, Officer Acosta’s declaration does not specify where he
was standing at the scene and thus does not give us information as to whether his
perspective of the situation was in fact identical to the other officers. See Est. of Taylor,
16 F.4th at 769 (noting the officer who did not shoot had less direct information because
he was not positioned in front of the suspect, unlike the officer who fired shots and was in
immediate danger).
Finally, to the extent the Estate contends the district court’s factual determination
is contradicted by their experts, that argument fails. The Estate relies on the declaration
of an expert in police use of force and procedure; the expert found a “close review of the
lapel camera video footage showed that at no point did [Valencia’s] toy rifle appear to be
pointed at officers or in their direction.” Aplt. Br. 11. The declaration provides that
“based on a careful review of the video footage,” the “shooting officers’ impressions of
[Valencia’s] body positions and movements were incorrect and did not happen as
described by the officers in order to justify their deployment of deadly force.” Id. But as
we stated, the declaration improperly considers the facts based on an expert’s 20/20
hindsight viewed through bodycam videos, and is not responsive to our inquiry as to what
a reasonable officer in the officers’ situation would have seen or believed. See Est. of
Larsen, 511 F.3d at 1259; Est. of Taylor, 16 F.4th at 759.
The Estate also relies on the findings of an expert in shooting incident
reconstruction; the expert opined that the “majority of Mr. Valencia’s gunshot wound
paths are consistent with shots fired into his body immediately after his body had fallen
and came to rest in a supine position.” Aplt. Br. 22. In so arguing, the Estate cites Estate
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of Smart ex rel. Smart v. City of Wichita, where we found an officer violated clearly
established law by shooting an individual “after it became clear he posed no threat.” 951
F.3d 1161, 1175 (10th Cir. 2020) (denying qualified immunity for an officer who fired
“his final shots” after the unarmed suspect had surrendered on the ground and no longer
posed a threat, despite an opportunity to reassess the situation). They argue that the
gunshot wounds demonstrate Valencia was shot even after he did not pose a threat. But
the facts here are not like those in Smart. Based on the bodycam footage, the officers
fired shots at the same time for less than three seconds. And no further shots were fired
after the officers reassessed the situation.
c. Graham Factor 3: Actively Resisting or Attempting to Evade Arrest
Finally, the last Graham factor favors the Estate because there is no evidence that
Valencia was actively resisting or trying to evade arrest by fleeing. The officers’
arguments as to Valencia’s lack of compliance with their orders and his repeated
touching of his weapon are arguments better suited and were adequately addressed under
the second Graham factor.
* * *
In sum, it was objectively reasonable for the officers to use lethal force based on
the totality of circumstances of the full encounter, which a reasonable officer at the scene
would have perceived as dangerous and hostile. See Est. of Taylor, 16 F.4th at 765
(“[T]he totality of the circumstances includes application of the Graham and Estate of
Larsen factors to the full encounter, from its inception through the moment the officers
19 Appellate Case: 24-2091 Document: 56-1 Date Filed: 05/28/2025 Page: 20
employed force.” (quoting Bond, 981 F.3d at 818)). There is no genuine dispute as to the
material facts—the bodycam videos demonstrate the officers’ commands were not
contradictory, and Valencia did not consistently comply with the officers’ orders to not
touch his weapon. Whether Valencia subjectively intended to move his gun is irrelevant
under the Graham factors and does not create material disputed facts that preclude
summary judgment.
Accordingly, the officers are entitled to qualified immunity on the Estate’s
excessive force claim.
B. New Mexico Tort Claims Act
The Estate also pursues several claims under the New Mexico Tort Claims Act:
(1) Assault and Battery Resulting in Wrongful Death (Count I); (2) Negligence Resulting
in Assault and Battery and Wrongful Death (Count II); and (3) Negligent Training,
Supervision, and Retention (Count III).6 They assert the district court erred in dismissing
its state law claims. We consider each argument below.
1. Count I: Assault and Battery Resulting in Wrongful Death
The Estate argues the district court erred in finding the officers’ use of force was
objectively and subjectively reasonable. They primarily contend the subjective
reasonableness analysis should have been deferred to a jury.
6 The Estate brought Count I against the officers and the City of Deming; Count II against all Defendants; and Count III against the City of Deming, Luna County, and the New Mexico Department of Public Safety. 20 Appellate Case: 24-2091 Document: 56-1 Date Filed: 05/28/2025 Page: 21
New Mexico Statute “Section 41-4-12 waives immunity for law enforcement
officers where their actions result in liability for the enumerated torts of assault and
battery.” Hernandez v. Parker, 508 P.3d 947, 956 (N.M. Ct. App. 2022) (citation
omitted). “The current iteration of a ‘general rule,’ or privilege, for law enforcement
officers to use force” derives from the American Jurisprudence on assault and battery. Id.
at 958. In short, “[p]olice officers may not be held liable in an action for assault and
battery for the use of reasonably necessary force in the enforcement of the law. Officers
are privileged to use force or commit battery when making a lawful arrest.” Id. (quoting
6 AM. JUR. 2D, Assault & Battery § 104 (2021)); see also Reynaga v. Cnty. of Bernalillo,
64 F.3d 670, *2 (10th Cir. 1995) (unpublished table decision) (“If more than necessary
force is used, then the officer commits an unprivileged assault on the arrested person.”
(quoting State v. Kraul, 563 P.2d 108, 112 (N.M. Ct. App. 1977))).
Unlike the Fourth Amendment analysis, the immunity analysis under the New
Mexico Tort Claims Act includes both an objective and a subjective test. Hernandez, 508
P.3d at 958. (“The Fourth Amendment is famously a strictly objective test.”). An officer
“must subjectively believe that he or she used no more force than necessary, but the
officer’s judgment is compared to that of a hypothetical reasonable police officer placed
in the same situation.” Id. (quoting 6 AM. JUR. 2D, Assault & Battery § 104).
Importantly, the defendant bears the burden to establish the defense or privilege. Id. at
959 (“[T]he federal and state causes of action allocate the burden of proof
differently. . . . The federal qualified immunity analysis shifts the entire burden of proof
to the plaintiff.” (citation omitted)).
21 Appellate Case: 24-2091 Document: 56-1 Date Filed: 05/28/2025 Page: 22
Having already discussed objective reasonableness, we focus on the Estate’s
arguments as to the officers’ subjective reasonableness. As the Estate argues, “New
Mexico courts . . . prefer reasonableness questions to be decided by a jury.” Id. (citation
omitted) (“[I]n state court, the question of reasonableness is generally reserved for the
jury, while the federal court decides the constitutional ‘reasonableness’ question as a
matter of law in the excessive force context.”). But that is only if there is a dispute as to
material facts.
Here, the Estate does not identify any evidence in the record demonstrating the
officers had ill intent or the officers subjectively believed they used more force than
necessary. Rather, the officers’ declarations show that they believed Valencia posed a
danger and that they feared for their own safety as well as the safety of those around
them. The Estate relies on expert testimony based on bodycam footage; but such
evidence is unpersuasive here because, as we noted, an officer’s judgment must be
compared to “that of a hypothetical reasonable police officer placed in the same
situation,” not based on a third party’s hindsight analysis. See id. at 957 (emphasis
added) (quoting 6 AM. JUR. 2D, Assault & Battery § 104).
In the absence of countervailing evidence suggesting the district court overlooked
material facts, there is simply no reason to continue litigation. See Martinez v. N.M.
Dep’t of Transp., 296 P.3d 468, 477 (N.M. Sup. Ct. 2013) (“Questions of
‘reasonableness’ are quintessential issues for a jury to resolve” when there are
“conflicting affidavits” and “reasonable minds could differ” as to the relevant
interpretation); c.f. Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 530 (10th Cir.
22 Appellate Case: 24-2091 Document: 56-1 Date Filed: 05/28/2025 Page: 23
1994) (“Although summary judgment is not ordinarily appropriate for settling issues of
intent or motivation, . . . all of [plaintiff’s] evidence together is insufficient to raise
doubts about the [defendant’s] motivation.” (internal citations omitted)). Accordingly,
we hold the officers are not liable for assault or battery because their lethal force was
reasonably necessary and thus privileged.
As for the Estate’s assault and battery claim against City of Deming, § 41-4-12
does not apply. Again, “Section 41-4-12 waives immunity for law enforcement officers
where their actions result in liability for the enumerated torts of assault and battery.”
Hernandez, 508 P.3d at 956 (emphasis added) (citation omitted). The statute defines law
enforcement officer as:
a full-time salaried public employee of a governmental entity, or a certified part-time salaried police officer employed by a governmental entity, whose principal duties under law are to hold in custody any person accused of a criminal offense, to maintain public order or to make arrests for crimes, or members of the national guard when called to active duty by the governor.
N.M. Stat. Ann. § 41-4-3 (1978) (emphases added). An entity, such as the City of
Deming, is not an employee or officer within the meaning of the statute.
We thus affirm the district court’s dismissal of Count I against the officers and the
City of Deming.
2. Count II: Negligence Resulting in Assault and Battery and Wrongful Death
The Estate’s brief concedes that “Count II cannot survive independent of Count I.”
Aplt. Br. 52. Having found that the officers did not commit an assault or battery because
23 Appellate Case: 24-2091 Document: 56-1 Date Filed: 05/28/2025 Page: 24
their force was privileged, we find that Count II necessarily fails because negligence
cannot arise when no underlying assault or battery exists. And as we explained, the
relevant New Mexico statute does not apply to entities like the City of Deming, Luna
County, and the New Mexico Department of Public Safety because they are not
employees or officers within the meaning of the statute. We therefore affirm the district
court’s dismissal of Count II.
3. Count III: Negligent Training, Supervision, and Retention
The Estate’s final state law claim is against Defendants City of Deming, Luna
County, and the New Mexico Department of Public Safety.7 Again, the relevant New
Mexico statute waives immunity only for law enforcement officers, not such entities.
Additionally, New Mexico state courts have held that immunity does not extend to
“supervisory law enforcement officers who negligently train or supervise subordinates.”
Caillouette v. Hercules, Inc., 827 P.2d 1306, 1311 (N.M. Ct. App. 1992) (citations
omitted). Instead, “the negligence complained of must cause a specified tort or violation
of rights; immunity is not waived for negligence standing alone.” Id. Having found there
is no underlying assault or battery, Count III fails.
We therefore affirm the district court’s dismissal of Count III.
7 The New Mexico Department of Public Safety’s motion for partial summary judgment as to Count III was granted by the district court on November 2, 2023. Luna County’s motion for summary judgment and qualified immunity for claims including Count III was denied as moot as part of the district court’s underlying decision. 24 Appellate Case: 24-2091 Document: 56-1 Date Filed: 05/28/2025 Page: 25
III. Conclusion
For the foregoing reasons, we affirm the district court’s summary judgment of
the Estate’s excessive force claim and New Mexico State Tort Act claims.