Hourigan v. Cassidy

2001 NMCA 085, 33 P.3d 891, 131 N.M. 141
CourtNew Mexico Court of Appeals
DecidedJuly 2, 2001
Docket20,895
StatusPublished
Cited by25 cases

This text of 2001 NMCA 085 (Hourigan v. Cassidy) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hourigan v. Cassidy, 2001 NMCA 085, 33 P.3d 891, 131 N.M. 141 (N.M. Ct. App. 2001).

Opinion

OPINION

BUSTAMANTE, Judge.

{1} Defendants (Cassidy and Kirkpatrick) appeal a jury verdict in favor of Plaintiff on his claim for violation of his liberty interests. They contend that the trial court erred in denying their claim of qualified immunity. Further, they contend that the evidence was insufficient to support the jury verdict, that the trial court erred in admitting certain evidence regarding incidents that were outside the complaint, and that the trial court erred in submitting a special verdict form that did not include a statement regarding proximate cause. Plaintiff cross-appeals. Plaintiff contends that the trial court erred in refusing to allow him to amend his complaint to include a different claim and in refusing a jury instruction that would have assisted the jury in determining when an investigative stop escalates into an arrest. Having considered the parties’ arguments, we affirm the trial court’s rulings and the jury verdict.

BACKGROUND AND FACTS

{2} Plaintiff is a resident of the Jemez area. Plaintiff is in the welding business and since leaving work at the Los Alamos Lab has run his own welding business in the Jemez area. Defendants are employees of the New Mexico Department of Game and Fish (Department) who were assigned at different times to the Jemez area for the purpose of enforcing the Game and Fish laws. Shortly after Cassidy began working in the Jemez area in 1988, Plaintiff reported to the Department that Cassidy was appropriating elk horns for personal profit while on duty, in uniform and using a Department vehicle. Plaintiff also reported that Cassidy had wrongfully taken an elk that Plaintiff had shot. Thereafter, Cassidy confronted Plaintiff in public places, falsely stating out loud that he had a crime-stoppers tip on Plaintiff and intimating that Plaintiff was a poacher. There was also testimony that whenever Cassidy saw Plaintiffs truck, he would leave a card on the windshield. Plaintiff testified that as a result of these public confrontations, he began to lose business. There was testimony that in 1989 Cassidy told William Dahl, then a Sandoval County Deputy Sheriff, that he was going to “get Dar Hourigan.” Dahl testified he assumed that meant that Cassidy had probable cause to believe Plaintiff was violating the law. Finally, tensions between the two arose to such a level that a meeting was held between Plaintiff and his attorney and members of the Department, including Cassidy. An agreement was reached that there would be no more public harassment.

{3} In 1993 Cassidy was transferred and Kirkpatrick began working in the Jemez area. Cassidy and Kirkpatrick had been college roommates and had been friends for many years. When Kirkpatrick was assigned to the area, he lived with Goob Barber, who later became the manager of the Baca Ranch. Kirkpatrick, Cassidy, and Barber were quite friendly and spent time together, hunting and gossiping. There was testimony that Barber did not trust Plaintiff. Plaintiffs welding business depended in large part on work for the timber companies working on the Baca Ranch. In 1996 Plaintiff was denied access to the Ranch. He contended that the denial was caused by the friendship among Defendants and Barber. As a result of the denial of access, Plaintiff lost any business that he had with the companies on the Ranch.

{4} In 1994 there was a significant fish kill on the San Antonio River, which runs through Plaintiffs property. Plaintiff reported the kill to Kirkpatrick. Kirkpatrick told Plaintiff to collect the fish and freeze them so that an autopsy could later be conducted. Kirkpatrick did not investigate until several days later. Plaintiff complained that Kirkpatrick was not doing his job because the person who caused the pollution upstream was on good terms with Game and Fish officers. Plaintiff testified that Kirkpatrick became angry and threatened to cite Plaintiff for possessing too many game fish. Plaintiff and his wife then wrote to Senator Bingaman and Representative Richardson about the problems they were having. The Department received letters from both inquiring about what investigation was being conducted.

{5} In 1995 Plaintiff was detained by Cassidy and Kirkpatrick who were investigating an illegal elk kill on the Baca Ranch. Kirkpatrick was told by an employee of the Ranch that the individual responsible for the kill was wearing camouflage, a blue baseball cap, and Danner boots. Kirkpatrick went to Thompson Ridge to investigate. Kirkpatrick called Cassidy to assist him in blocking one of the two exits from the area. Plaintiff, who had left a friend hunting on Thompson Ridge, was seen leaving the area in his truck. Kirkpatrick and Cassidy agreed that Plaintiff should be stopped in order to see what he was wearing. Cassidy stopped Plaintiff at the gate to his property. Cassidy reported to Kirkpatrick that Plaintiff was not wearing camouflage, but had on a blue baseball cap. Kirkpatrick advised Cassidy to hold Plaintiff until he arrived; that he was en route with a witness. There was conflicting testimony regarding whether Plaintiff was told he was under arrest. There was also conflicting testimony regarding whether Cassidy was told that Plaintiff did not meet the description given by the witness. When Kirkpatrick arrived, he looked in Plaintiffs truck for any camouflage, he asked Plaintiff a couple of questions, then he and Cassidy left the scene.

{6} There was conflicting testimony regarding the amount of time that Plaintiff was detained, with Plaintiff testifying that it lasted forty-five minutes, and Cassidy testifying that it lasted about twenty minutes. There was also conflicting testimony regarding whether the detention was acrimonious. During that time, friends who were fishing on Plaintiffs property visited cordially with Cassidy. Cassidy testified that he did not say much to Plaintiff, but prevented him from entering his property until Kirkpatrick arrived. He also testified that Plaintiff was yelling at him, although there was no physical confrontation. Plaintiffs wife attempted to video-tape the encounter, but apparently did not know how to operate the camera and got nothing but people standing around.

{7} In the winter of 1995 Plaintiff was stopped a number of times by Kirkpatrick and other Department officers and asked about hunting licenses. In fact, it was so bad that several of Plaintiffs friends would no longer hunt with him because he was either' stopped or followed by Department officers. The following year, on the first day of hunting season, Plaintiff went to his traditional spot and found Game and Fish vehicles throughout the area. Everywhere he went, he was followed by Department officers.

{8} After he was denied access to the Baca Ranch and lost much of his welding business in 1996, Plaintiff filed this lawsuit alleging false arrest for the stop in 1994 and violation of his civil rights by a pattern of harassment intended to ruin Plaintiffs business and reputation. The next day Kirkpatrick sped past Plaintiffs house at a high rate of speed, then came back and asked Plaintiffs wife about a road she had never heard of. Later that summer, Kirkpatrick stopped one of the persons identified as a witness by Plaintiff and began asking him about his testimony in the lawsuit. At the end of that summer, Plaintiff attended a “fire sale” for hunting permits with several of his friends.

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Cite This Page — Counsel Stack

Bluebook (online)
2001 NMCA 085, 33 P.3d 891, 131 N.M. 141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hourigan-v-cassidy-nmctapp-2001.