Loya v. Gutierrez

2015 NMSC 017, 8 N.M. Ct. App. 11

Opinion

1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 2 Opinion Number:______________ 3 Filing Date: May 11, 2015

4 NO. 34,447

5 JOSE LUIS LOYA, 6 7 Plaintiff,

8 v.

9 GLEN GUTIERREZ, Commissioned 10 Officer of Santa Fe County, 11 12 Defendant/Third-Party Plaintiff/Appellant-Petitioner,

13 v. 14 COUNTY OF SANTA FE, 15 Third-Party Defendant/Appellee-Respondent.

16 ORIGINAL PROCEEDING ON CERTIORARI 17 Barbara J. Vigil, District Judge

18 VanAmberg, Rogers, Yepa, Abeita & Gomez, LLP 19 Carl Bryant Rogers 20 Santa Fe, NM

21 Ray A. Padilla, P.C. 22 Ray A. Padilla 1 Albuquerque, NM 2 for Petitioner

3 Law Offices of Michael Dickman 4 Michael Dickman 5 Santa Fe, NM

6 for Respondent

7 Robles, Rael & Anaya, P.C. 8 Luis E. Robles 9 Frank T. Apodaca 10 Albuquerque, NM

11 for Amicus Curiae New Mexico Association of Counties 1 OPINION 2 BOSSON, Justice. 3 {1} Given New Mexico’s highways that traverse both state and tribal lands, it is not 4 uncommon that a tribal police officer patrolling those highways may be 5 commissioned as a deputy county sheriff to arrest non-Indians and prosecute them in 6 state court when they commit state traffic offenses on tribal land. In light of those 7 recurring facts, we determine a county’s legal obligation when a non-Indian, arrested 8 by a tribal officer and prosecuted in state court for state traffic offenses, sues the 9 arresting tribal officer for federal civil rights violations. More particularly, we decide 10 when the county has an obligation under the New Mexico Tort Claims Act, NMSA 11 1978, §§ 41-4-1 to -29 (1976, as amended through 2009) (NMTCA), to provide that 12 tribal police officer with a legal defense in the federal civil rights action. The district 13 court as well as our Court of Appeals found no such legal duty, in part because it 14 concluded that the tribal officer was not a state public employee as defined in the 15 NMTCA. We hold to the contrary, finding clear evidence in the text and purpose of 16 the NMTCA requiring the county to defend the tribal officer, duly commissioned to 17 act as a deputy county sheriff, under these circumstances endemic to the New Mexico 18 experience. 19 BACKGROUND

2

1 {2} On September 5, 2009, Officer Glen Gutierrez, on duty as a full-time salaried 2 police officer of the Pueblo of Pojoaque and also commissioned as a Santa Fe County 3 deputy sheriff, was patrolling a portion of U.S. Highway 84/285 located within the 4 exterior boundary of the Pojoaque Pueblo. He was driving his tribally-marked and 5 issued police vehicle and was dressed in his full tribal uniform displaying his tribal 6 badge. He was also carrying a deputy’s commission card issued to him by the Santa 7 Fe County sheriff. 8 {3} Officer Gutierrez observed Jose Luis Loya making a dangerous lane change 9 and engaged his emergency equipment to signal Loya to pull over. Once stopped, 10 Officer Gutierrez asked Loya to step out of his vehicle and informed Loya that he was 11 under arrest for reckless driving in violation of NMSA 1978, Section 66-8-113 12 (1987), a state law. Officer Gutierrez placed Loya in the back of his patrol vehicle and 13 transported Loya to the Pojoaque Tribal Police Department for processing. Loya, a 14 non-Indian, was not subject to prosecution for violation of tribal law, and therefore, 15 he was transported from the Pueblo to the Santa Fe County Adult Detention Center 16 where he was incarcerated. Ultimately, Officer Gutierrez prosecuted Loya for reckless 17 driving in Santa Fe County Magistrate Court. 18 {4} Loya felt aggrieved by what happened to him that night. Based on those

3

1 events, Loya filed a civil complaint against Officer Gutierrez in the First Judicial 2 District Court to recover damages for deprivation of his civil rights under 42 U.S.C. 3 Section 1983 (1996) (Section 1983), claiming false arrest, malicious prosecution, and 4 use of excessive force. Section 1983 creates a civil action for damages under federal 5 law against any person acting under color of state law who violates the Constitution 6 and laws of the United States. See 42 U.S.C. § 1983. “Native American tribes and 7 those acting under tribal law do not act under color of state law within the meaning 8 of [Section] 1983,” but Native-American actors may be subject to a Section 1983 9 claim if their actions are taken pursuant to state authority. Williams v. Bd. of Cnty. 10 Comm’rs, 1998-NMCA-090, ¶ 20, 125 N.M. 445, 963 P.2d 522 (emphasis added). 11 “If an individual is possessed of state authority and purports to act under that 12 authority, his action is state action.” Id. ¶ 21 (internal quotation marks and citation 13 omitted). 14 {5} The State of New Mexico has exclusive criminal jurisdiction over non-Indians 15 for actions committed within the exterior boundaries of a tribe or pueblo pursuant to 16 the Indian Pueblo Land Act Amendments of 2005. See Pub. L. No. 109-133, 119 Stat. 17 2573 (2005). A tribal police officer may have jurisdictional authority to enforce tribal 18 civil traffic ordinances against non-Indians and may eject or exclude a non-Indian

4

1 engaging in criminal activity or may detain and transport the offender to proper state 2 authorities. See Pueblo of Pojoaque Civil Traffic Code, Tribal Council Resolution No. 3 1992-95 (August 20, 1992). See also Duro v. Reina, 495 U.S. 676, 696-97 (1990). A 4 tribal officer may not arrest, charge, jail, or prosecute non-Indian offenders for 5 violation of state law without some additional state authority. Id. 6 {6} According to the affidavit of Pueblo of Pojoaque Police Chief John Garcia, the 7 limited jurisdiction of tribal police officers historically created a gap in effective law 8 enforcement on state highways located within the exterior boundaries of a tribe or 9 pueblo. The county sheriff did not have adequate staff to combat criminal activity by 10 non-Indians on state highways traversing tribal lands. Likewise, the tribal officers 11 lacked authority to prosecute non-Indian offenders. To overcome this limitation and 12 encourage jurisdictions to work together, the Santa Fe County sheriff issued 13 commissions to Pojoaque Pueblo police officers to act as county sheriff’s deputies. 14 {7} In the course of that practice, on June 23, 2008, Santa Fe County Sheriff Greg 15 Solano issued a commission to Officer Gutierrez appointing him as a Santa Fe County 16 deputy sheriff for purposes of enforcing state traffic laws and criminal statutes against 17 non-Indian offenders for offenses committed within the exterior boundaries of 18 Pojoaque Pueblo. To qualify for the appointment, Sheriff Solano required Officer

5

1 Gutierrez to provide documentation showing successful completion of state and/or 2 federal law enforcement training and certification, a written copy of his background 3 investigation, and his written application. Sheriff Solano also required Officer 4 Gutierrez to take the oath mandated by the New Mexico Constitution to “support the 5 Constitution of the United States, the Constitution and laws of the State of New 6 Mexico, the laws of the County of Santa Fe and faithfully and impartially discharge 7 the duties of said office to the best of [his] ability.” See N.M. Const. art. XX, § 1 8 (“Every person elected or appointed to any office shall, before entering upon his 9 duties, take and subscribe to an oath or affirmation that he will support the 10 constitution of the United States and the constitution and laws of this state, and that 11 he will faithfully and impartially discharge the duties of his office to the best of his 12 ability.”). 13 {8} As stated above, absent additional authority tribal police officers have no legal 14 authority to charge non-Indian offenders for a violation of state law even if the 15 violation is committed on tribal land. See Duro, 495 U.S. at 696-67. It is the 16 commission as a county deputy sheriff that gives tribal police the authority to make 17 such arrests while acting under state law. In this case, the very reason Officer 18 Gutierrez, a tribal police officer, is subject to a Section 1983 claim for actions taken

6

1 under color of state law, is because he was acting under his state authority as a deputy 2 sheriff, not tribal authority, when he charged, detained, and prosecuted Loya under 3 state law. See Williams, 1998-NMCA-090, ¶¶ 20-21. 4 {9} Upon being sued, Officer Gutierrez tendered two requests to Santa Fe County 5 to provide him with a legal defense and indemnification, if necessary, in accord with 6 the defense and indemnification provisions of the NMTCA, § 41-4-4(B), (D). The 7 County claimed it did not have any duty to provide a legal defense and 8 indemnification, asserting that Officer Gutierrez was not a state “public employee” 9 as defined by the NMTCA. See § 41-4-3(F). Following the denial of his request, 10 Officer Gutierrez filed a third-party complaint in the Loya litigation against the 11 County seeking a declaratory judgment that the NMTCA required the County to 12 defend and indemnify him with respect to Loya’s Section 1983 claims against him. 13 The County answered and asserted a counterclaim for declaratory judgment in its 14 favor. 15 {10} Both parties then filed motions for summary judgment, each basing its claim 16 on an interpretation of the County’s duties under the NMTCA. The district court ruled 17 for the County, finding that Officer Gutierrez was not entitled to a defense under the 18 NMTCA. The Court of Appeals affirmed. Loya v. Gutierrez, 2014-NMCA-028, ¶ 23,

7

1 319 P.3d 656. We granted certiorari to resolve a significant issue of law that 2 potentially affects law enforcement wherever state and tribal lands border each other 3 throughout New Mexico. Loya v. Gutierrez, 2014-NMCERT-002. 4 DISCUSSION 5 The New Mexico Tort Claims Act 6 {11} The issue before us is whether the County is obligated to defend and potentially 7 indemnify Officer Gutierrez when he was sued for actions taken to charge, arrest, and 8 prosecute a non-Indian offender in state court for violating state law on Indian land. 9 The parties agree that the NMTCA guides this determination. The defense and 10 indemnification provisions of the NMTCA, § 41-4-4(B), (D), set forth the obligation 11 of governmental entities to protect public employees when they are sued for actions 12 taken in the scope of their duties. Specifically, Subsection (B) states:

13 [A] governmental entity shall provide a defense, including costs and 14 attorney[’s] fees, for any public employee when liability is sought for: 15 (1) any tort alleged to have been committed by the public 16 employee while acting within the scope of his duty; or 17 (2) any violation of property rights or any rights, privileges or 18 immunities secured by the constitution and laws of the United States or 19 the constitution and laws of New Mexico when alleged to have been 20 committed by the public employee while acting within the scope of his 21 duty.

22 Section 41-4-4(B) (emphasis added). Likewise, if a settlement or judgment is entered

8

1 against a public employee acting within the scope of his or her duties, the 2 governmental entity is required to pay the judgment or settlement. Section 41-4-4(D). 3 These provisions are intended to protect “public employee[s]” from individual 4 liability when they are acting within the scope of their duties, thus operating as a kind 5 of statutory insurance policy. Risk Mgmt. Div. v. McBrayer, 2000-NMCA-104, ¶ 6, 6 129 N.M. 778, 14 P.3d 43. Accordingly, we focus first on whether Officer Gutierrez 7 was acting as a “public employee” within the meaning of the NMTCA when he 8 arrested Loya on a state highway traversing tribal lands. 9 Whether Officer Gutierrez Is a Public Employee Under the NMTCA 10 {12} Section 41-4-3(F) of the NMTCA defines “‘public employee’” as “an officer, 11 employee or servant of a governmental entity, excluding independent contractors” 12 except for specifically defined individuals not relevant here. “‘[G]overnmental entity’ 13 means the state or any local public body.” Section 41-4-3(B). “‘[S]tate’ . . . means the 14 state of New Mexico or any of its branches, agencies, departments, boards, 15 instrumentalities or institutions.” Section 41-4-3(H). “‘[L]ocal public body’ means 16 all political subdivisions of the state and their agencies, instrumentalities and 17 institutions.” Section 41-4-3(C). Based on these definitions the County is a 18 “governmental entity,” and the Pueblo of Pojoaque is not a “governmental entity”

9

1 under the NMTCA. 2 {13} The question then is whether Officer Gutierrez was acting as a “public 3 employee” for the County when he arrested Loya. The “public employee” definition 4 in turn identifies eighteen categories of persons who are deemed to be “public 5 employees,” two of which pertain to this case. Section 41-4-3(F). Section 41-4- 6 3(F)(2) identifies “law enforcement officers” as “public employees.” Section 41-4- 7 3(F)(3) identifies “public employees” as those “persons acting on behalf or in service 8 of a governmental entity in any official capacity, whether with or without 9 compensation.”

10 Whether a Tribal Police Officer Can Also Be a Public Employee Under the 11 NMTCA Under Certain Circumstances

12 {14} The County makes a number of arguments as to why Officer Gutierrez cannot 13 be a public employee under the NMTCA.1 We consider them in the order of their

1

14 Following oral argument, the County submitted supplemental authority to 15 support its position that a tribal officer cannot be a public employee under the 16 NMTCA. See Trujillo v. Romero, No. 13-CV-1178 MCA-SCY, Doc. 112 (D.N.M. 17 Mar. 3, 2015) (declining to certify question of whether the NMTCA requires a 18 governmental entity to provide a defense and/or indemnification to a tribal officer 19 commissioned as a deputy sheriff when, acting under color of state law, he allegedly 20 commits torts and/or violations of Section 1983, because the question can be 21 answered by an appellate opinion of the New Mexico Court of Appeals). In reaching 22 the conclusion that the tribal officers in that case were not public employees under 23 the NMTCA, the federal district court expressly relied on the Court of Appeals’

10

1 presentation. 2 {15} The County first argues that Officer Gutierrez is not a “public employee” based 3 on the opinion from the Court of Appeals in Williams, 1998-NMCA-090, ¶ 26. 4 Williams involved a Navajo tribal officer who was “cross-deputized” as a San Juan 5 County sheriff’s deputy, commissioned as a Bureau of Indian Affairs special deputy 6 police officer, and certified by the New Mexico state police. Id. ¶ 2. The officer in 7 that case issued a tribal speeding ticket, under Navajo law, to a non-Indian driving 8 within the exterior boundaries of the Navajo Nation. Id. ¶¶ 2, 3. The person receiving 9 the tribal speeding ticket (the plaintiff) sued the tribal officer under the NMTCA for 10 alleged tortious behavior. Id. ¶¶ 5, 26. The plaintiff argued that the tribal officer, 11 though making the arrest under tribal law, was subject nonetheless to the NMTCA 12 because his “cross-deputization” to act under state law as a deputy sheriff made him 13 a “public employee” under the NMTCA. Id. ¶ 26.The Court of Appeals affirmed 14 dismissal of the tort claims, holding that the mere issuance of a deputy 15 commission—without more—does not automatically transform a tribal officer into

16 decision in this case. See generally Loya, 2014-NMCA-028. For the reasons set forth 17 in this opinion, we reverse the Court of Appeals and instead hold that, when 18 enforcing state law, a tribal officer commissioned as a county sheriff’s deputy is a 19 public employee. Therefore, Trujillo is not persuasive.

11

1 a “public employee” under the NMTCA. Id. The Court in Williams noted that the 2 tribal officer issued a tribal traffic ticket, not a state traffic ticket, to the plaintiff and 3 was therefore acting under Navajo law when he was sued. Id. ¶ 3. Importantly, the 4 Court of Appeals left open the possibility that a tribal officer could be a “public 5 employee” under the NMTCA if there were more evidence than just the issuance of 6 a state commission to the tribal officer. See Williams, 1998-NMCA-090. 7 {16} This is just such a case. Unlike Williams, Officer Gutierrez was enforcing state 8 law, not tribal law, when he arrested Loya and charged him in state court for violating 9 state law, thereby acting as a state officer and not a tribal officer. If Officer Gutierrez 10 had issued a tribal ticket to Loya under Pueblo authority, he would have been acting 11 on behalf of the Pueblo and the result would be the same as in Williams. The 12 additional fact that Officer Gutierrez was acting on behalf of the County, not the 13 Pueblo, creates an important distinction between the two cases, and thus provides the 14 additional evidence missing from Williams. We conclude that the Court of Appeals’ 15 analysis in Williams is consistent with our determination here that Officer Gutierrez 16 is not excluded from the NMTCA definition of “public employee” on the mere basis 17 that he is also employed as a tribal officer. We next address whether Officer Gutierrez 18 falls within one of the two identified categories of “public employee” under the

12

1 NMTCA. 2 {17} As set forth previously, one definition of a public employee under the NMTCA 3 is a “law enforcement officer.” Section 41-4-3(D) defines “law enforcement officer” 4 as:

5 [A] full-time salaried public employee of a governmental entity, or a 6 certified part-time salaried police officer employed by a governmental 7 entity, whose principal duties under law are to hold in custody any 8 person accused of a criminal offense, to maintain public order or to 9 make arrests for crimes.

10 Officer Gutierrez was not a “full-time salaried public employee” or even a “part-time 11 salaried police officer” of the County or any other “governmental entity” recognized 12 by the NMTCA. He was compensated by the Pueblo of Pojoaque and not by the 13 County. 14 {18} This does not end the inquiry, however. In addition to the “law enforcement 15 officer” category, the NMTCA defines a public employee as a “person[] acting on 16 behalf or in service of a governmental entity in any official capacity, whether with or 17 without compensation.” Section 41-4-3(F)(3). The statute does not supply a definition 18 for this category, so we look first to the text. Key v. Chrysler Motors Corp., 1996- 19 NMSC-038, ¶ 13, 121 N.M. 764, 918 P.2d 350 (“In interpreting statutes, we seek to 20 give effect to the Legislature’s intent, and in determining intent we look to the

13

1 language used and consider the statute’s history and background.”).

2 Whether Officer Gutierrez Is a “Person Acting On Behalf Of Government Or 3 In Service Of a Governmental Entity In Any Official Capacity, Whether With 4 Or Without Compensation”

5 {19} To meet this category of “public employee,” Officer Gutierrez had to be acting 6 on behalf of the County with or without compensation. Section 41-4-3(F)(3). Officer 7 Gutierrez must also have been acting in any official capacity. Id. At first glance it 8 would appear that Officer Gutierrez satisfies both requirements. At the time of the 9 Loya arrest, Officer Gutierrez was acting in an official capacity as a duly-sworn 10 sheriff’s deputy; he could not have legally arrested Loya, a non-Indian, any other 11 way. When Officer Gutierrez made the arrest, he was acting on behalf of the County, 12 not the Pueblo, which continued through Officer Gutierrez’s prosecution of Loya in 13 state magistrate court for the state traffic offense. In order to be certain, however, we 14 must first understand the nature of Officer Gutierrez’s commission to act as a deputy 15 sheriff. A brief history of these commissions helps inform this understanding. 16 History Of Law Enforcement Commissions 17 {20} We start with the authority of a sheriff to commission a deputy. A sheriff’s 18 ability to commission deputies is rooted in ancient English common law under which 19 a sheriff has inherent authority to vest his undersheriff with authority to perform

14

1 every ministerial act the principal sheriff may perform. State ex rel. Geyer v. Griffin, 2 76 N.E.2d 294, 298 (Ohio Ct. App. 1947) (per curium).

3 [The deputy] acts for the sheriff in his name and stead. . . . In the 4 absence of any statutory restriction, the sheriff has full power to appoint 5 . . . an undersheriff, and as many general or special deputies as the 6 public service may require, who may discharge all the ordinary 7 ministerial duties of the office, such as the return and service of process 8 and the like. All acts of the undersheriff or of the deputies are done in 9 the name of the sheriff, who is responsible for them.

10 Id. In modern jurisprudence, the common-law office of deputy sheriff remains much 11 the same and is the presumed rule unless a change is effected by the Constitution or 12 state statute. Id. 13 {21} In New Mexico, the power of a county sheriff to commission someone as a 14 deputy to “preserve the public peace and to prevent and quell public disturbances,” 15 N.M. Att’y Gen. Op. 57-83 (1957), was codified as early as 1856 by the Legislative 16 Assembly of the Territory of New Mexico. That statute states:

17 Section 1. That the sheriffs in all the counties of this 18 Territory shall have power to appoint deputies . . . . 19 Sec. 2. Each deputy . . . shall take an oath to discharge 20 faithfully the duties of his office, and the sheriffs shall be 21 respons[i]ble for the acts of their deputies as such. 22 Sec. 3. The said deputies are hereby authorized to discharge 23 all the duties which belong to the office of sheriff, that may be 24 placed under their charge by their principals, with the same effect 25 as though they were executed by the respective sheriffs.

15

1 1855-56 N.M. Laws, ch. 2, §§ 1-3. Under that statute, the sheriff in every territorial 2 county had the power to appoint deputies as long as they took an oath to “discharge 3 faithfully the duties of his office” prior to entering upon the duties thereof. Id.§ 2. In 4 line with common-law principles, the statute mandated that “the sheriffs shall be 5 respons[i]ble for the acts of their deputies.” Id. In 1905, the Legislature added 6 eligibility requirements for deputy sheriffs. NMSA 1915, § 1257 (1905). The same 7 oath was later added to the New Mexico Constitution. See N.M. Const. art. XX, § 1. 8 {22} In 1891, the Legislative Assembly enacted an additional statute to require all 9 appointed special deputy sheriffs, marshals, police officers, or other peace officers in 10 New Mexico to be citizens of the Territory of New Mexico. 1891 N.M. Laws, ch. 60, 11 § 1. The statute was amended in 2006 to require that all deputy sheriffs be United 12 States citizens. See NMSA 1978, § 4-41-10 (2006). The 1891 statute also required a 13 written appointment from the person authorized by law to appoint special deputy 14 sheriffs before the appointed person could “assume or exercise the functions, powers, 15 duties and privileges incident and belonging to the office of special deputy sheriff, 16 special constable, marshal or police[ officer] or other peace officer.” 1891 N.M. 17 Laws, ch. 60, § 1. 18 Extension Of Commissions To Tribal Officers

16

1 {23} During the 1950s, the New Mexico Attorney General issued several legal 2 opinions advising that full-time police officers employed by New Mexico tribes and 3 pueblos could be commissioned as special deputies as long as they met statutory 4 qualifications under NMSA 1953, Section 15-40-10 (1905); NMSA 1953, Section 15- 5 40-12 (1901); and NMSA 1953, Section 39-1-9 (1891). N.M. Att’y Gen. Op. 55-6305 6 (1955); N.M. Att’y Gen. Op. 57-83. The Attorney General characterized these 7 specially commissioned tribal officers as “unpaid [county sheriff’s] deput[ies].” N.M. 8 Att’y Gen. Op. 66-91 (1966). Today, county sheriffs maintain that authority under 9 New Mexico law to appoint special sheriff’s deputies to preserve the public peace and 10 to prevent and quell public disturbances, including the authority to appoint tribal 11 police officers who satisfy statutory qualifications. See NMSA 1978, § 4-41-5 (1975) 12 (“Deputy sheriffs; appointment and term; merit system”); NMSA 1978, § 4-41-8 13 (1905) (“Deputy sheriff; qualifications; character; revocation of commission”); and 14 NMSA 1978, § 4-41-9 (1855-56) (“Deputy sheriffs; powers and duties”).

15 Commissioning Tribal Officers By Contractual Agreement And Not Just By 16 Appointment

17 {24} In addition to the authority of the county sheriff to appoint tribal police officers 18 to act as special deputies, the Legislature authorized additional law enforcement

17

1 agencies during the 1970s to issue commissions through formal agreements with 2 tribal entities. The Mutual Aid Act, NMSA 1978, §§ 29-8-1 to -3 (1971), authorizes 3 “[a]ny state, county or municipal agency having and maintaining peace officers [to] 4 enter into mutual aid agreements with any public agency as defined in the Mutual Aid 5 Act, with respect to law enforcement.” Section 29-8-3. Other “public agenc[ies]” 6 include “an Indian tribal council, Indian pueblo council and the state or any county 7 or municipality thereof.” Section 29-8-2. To be valid, a mutual aid agreement must 8 be in writing and approved by both the “public agency”—in this case the Pueblo of 9 Pojoaque—and the governor of New Mexico. See State v. Branham, 2004-NMCA- 10 131, ¶ 14, 136 N.M. 579, 102 P.3d 646; see also § 29-8-3. 11 {25} The other type of statutory agreement, referred to as a “cross-commission 12 agreement,” is authorized under NMSA 1978, Section 29-1-11 (2005). This provision 13 authorizes the chief of the New Mexico state police to issue commissions as New 14 Mexico peace officers to members of tribal police departments as long as statutory 15 procedures are followed and the requirements and responsibilities of each entity are 16 set forth in a formal written agreement. Section 29-1-11(B). Originally, the statute 17 only authorized cross-commission agreements between the New Mexico state police 18 and members of the Navajo police department. NMSA 1953, § 39-1-12 (1972). In

18

1 1979, the Legislature amended the statute to authorize state police to enter into 2 agreements with members of any New Mexico tribe or pueblo. NMSA 1978, § 29-1- 3 11(B) (1979). As indicated, this statute only pertains to agreements with the state 4 police. 5 {26} The 1979 amendment also added several conditions to be included in a cross- 6 commission agreement, including a training requirement for all commission 7 applicants, proof that the tribe or pueblo entering into the agreement has adequate 8 public liability and property damage insurance for vehicles operated by the peace 9 officers and police professional liability insurance, and a requirement that the chief 10 of the New Mexico state police and the tribe or pueblo meet at least quarterly to 11 discuss the status of the agreement. Id. ¶ C. Importantly, in 2005 the Legislature 12 added a subsection to the statute cautioning that these procedures in the cross- 13 commission statute are separate from, and do not “impair[] or nullif[y]” the traditional 14 “authority of county sheriffs to appoint . . . duly commissioned state or federally 15 certified officers who are employees of a police or sheriff’s department of an Indian 16 nation, tribe or pueblo in New Mexico . . . as deputy sheriffs authorized to enforce 17 New Mexico criminal and traffic law.” Section 29-1-11(G). 18 {27} Thus, the Mutual Aid Act and the statute authorizing cross-commission

19

1 agreements are not, and never have been, the exclusive source of authority for 2 commissioning a tribal police officer to act under state law as a deputy sheriff. 3 Sheriffs retain that traditional authority, going back to the common law and early 4 territorial days, to appoint deputies, including tribal police officers, to assist the 5 sheriff in the enforcement of New Mexico criminal and traffic law. These 6 appointments may occur, pursuant to the sheriff’s historic authority under Section 4- 7 41-5, without a formal agreement between governmental entities and, more to the 8 point, without any assurance that the tribe will indemnify the county in the event of 9 litigation. 10 {28} Accordingly, Santa Fe County Sheriff Solano had the authority under state law 11 to commission Officer Gutierrez, notwithstanding the lack of any formal agreement 12 between the County and the Pueblo of Pojoaque. At the time of the Loya arrest, 13 Officer Gutierrez was duly acting as an unpaid sheriff’s deputy, a volunteer, no 14 different from any volunteer deputy commissioned over the past century. 15 The Effect Of the Sheriff’s Unanswered Letter To the Pueblo 16 {29} The County argues, however, that in this particular instance Sheriff Solano 17 issued the commission subject to the provisions set forth in the January 24, 2005, 18 letter from Sheriff Solano to Pueblo of Pojoaque Tribal Police Chief John Garcia.

20

1 According to the County, that letter memorialized the scope of authority conferred 2 upon Officer Gutierrez, provided rules for commissioned deputies to follow when 3 acting on behalf of the County, and delineated financial responsibilities between the 4 County and the Pueblo. In particular the letter stated that the Pueblo of Pojoaque shall 5 be liable if a commissioned officer “is sued for actions taken while effecting an arrest 6 or pursuing a suspect.” The County argues that the letter created an agreement 7 between the County and the Pueblo of Pojoaque and that Officer Gutierrez is 8 commissioned pursuant to the conditions set forth in that agreement, including the 9 Pueblo’s assumption of liability. 10 {30} We find the County’s position unpersuasive. The record is devoid of any 11 evidence that Pojoaque Police Chief Garcia, the Pueblo Governor, or the Pueblo 12 Council ever acknowledged the existence of that letter, much less agreed to its terms. 13 Officer Gutierrez claimed that he was unaware of the letter at the time he took the 14 oath of office as a commissioned deputy sheriff. The district court below issued no 15 contrary findings. Nothing in the record indicates any efforts by Sheriff Solano to 16 follow through with these purported (and unilateral) conditions. There is no 17 indication of any discussions verifying that the Pueblo had accepted liability for its 18 officers. Accordingly, we need not decide the letter’s legal efficacy without any

21

1 evidence of its acceptance. And we certainly could not decide the letter’s legal 2 efficacy without hearing from the Pueblo. See Santa Clara Pueblo v. Martinez, 436 3 U.S. 49, 58 (1978) (“It is settled that a waiver of sovereign immunity cannot be 4 implied but must be unequivocally expressed.” (internal quotation marks and citations 5 omitted)); Am. Indian Agric. Credit Consortium, Inc. v. Standing Rock Sioux Tribe, 6 780 F.2d 1374, 1379 (8th Cir. 1985) (“[N]othing short of an express and unequivocal 7 waiver can defeat the sovereign immunity of an Indian nation.”). 8 {31} As discussed earlier, the Legislature has provided for agreements between 9 Native-American tribes and the State, but this letter does not fall within anything the 10 Legislature has authorized. Without a written, executed agreement, it does not comply 11 with the terms of the Mutual Aid Act. The letter does not create a valid cross- 12 commission agreement under Section 29-1-11 because those agreements are limited 13 to commissions issued by the New Mexico state police. In fact, the statute clearly 14 states that the authority of county sheriffs to appoint duly commissioned deputies is 15 not limited, impaired or nullified by the provisions of Section 29-1-11. See Section 16 29-1-11(G). The statute allows for the appointment of commissioned deputies 17 (including tribal officers), but makes no reference to the kind of agreement 18 envisioned here, including assumption of liability. Id.

22

1 {32} Accepting that Officer Gutierrez was commissioned as a volunteer sheriff’s 2 deputy and not pursuant to any formal agreement executed under New Mexico 3 statute, we return to our initial, “working” determination that Officer Gutierrez 4 seemed to be acting as a “public employee” under the NMTCA when he arrested and 5 prosecuted Loya. See § 41-4-3(F). As an unpaid deputy, Officer Gutierrez was acting 6 in an “official capacity” and “on behalf or in service of” the County sheriff and Santa 7 Fe County. See § 41-4-3(F)(3). Satisfaction of these two requirements necessarily 8 makes Officer Gutierrez a “public employee” under the NMTCA; he was a “person[] 9 acting on behalf or in service of a governmental entity [the County] in any official 10 capacity, whether with or without compensation.” Id. As a “public employee” under 11 that section of the NMTCA, Officer Gutierrez was entitled to its benefits including 12 a legal defense and indemnification. 13 {33} As an aside, it is of no import that the County did not compensate Officer 14 Gutierrez for his service. The language in Section 41-4-3(F)(3) “with or without 15 compensation” is an “express declaration of legislative intent in including volunteers 16 acting on behalf of a governmental entity within the purview of the [NM]TCA.” 17 Celaya v. Hall, 2004-NMSC-005, ¶ 9, 135 N.M. 115, 85 P.3d 239. There is clear 18 legislative intent to protect both paid employees and volunteers from personal

23

1 liability for actions taken on behalf of their “governmental entity” employer with or 2 without any agreement pertaining to indemnification and legal defense. We see no 3 reason why Officer Gutierrez, an unpaid sheriff’s deputy, should be treated any 4 differently simply because the Legislature also intended to provide protection from 5 personal liability for full-time “law enforcement officers” as defined under the 6 NMTCA. The NMTCA treats volunteers the same as any other employee and 7 “protects the public by ensuring that government will be financially accountable when 8 volunteers working within their scope of duty” are hauled into court. Celaya, 2004- 9 NMSC-005, ¶ 9.

10 As a Tribal Police Officer, Officer Gutierrez Is Not Limited To the “Law 11 Enforcement Officer” Subcategory Of “Public Employee”

12 {34} The County further argues that even if a tribal police officer may technically 13 fit within the definition of a “public employee” as a person “acting on behalf . . . of 14 . . . government[] . . . in any official capacity,” the operative category in this inquiry 15 is nonetheless limited to “law enforcement officer.” See § 41-4-3(D), (F). According 16 to the County, because Officer Gutierrez was purporting to act specifically as a law 17 enforcement officer and not generally as a public employee when he arrested and 18 charged Loya, then he can only qualify under the NMTCA as a “law enforcement

24

1 officer.” As previously acknowledged, of course, Officer Gutierrez is not a “law 2 enforcement officer” as defined under the NMTCA because he is not a “full-time 3 salaried public employee” of the County. What the County is really trying to do, 4 therefore, is to exclude Officer Gutierrez and other unpaid sheriff’s deputies from the 5 protections provided by the NMTCA because the County does not pay them a salary 6 for their service. We first look at the policy implications of such as position. 7 {35} Presumably, allowing the County sheriff to commission tribal police officers 8 as deputies has enhanced the law enforcement presence and effectiveness within the 9 County, resulting in improved public safety at little cost to the County. See Affidavit 10 of Chief John Garcia Pueblo of Pojoaque Tribal Police Department in Loya v. 11 Gutierrez, First Judicial District Court No. D-101-CV-2010-3854, dated November 12 10, 2011. The County seeks to keep that benefit while denying any responsibility for 13 the risks arising from its creation—namely actions taken by volunteer deputies who 14 are sued while acting on the County’s behalf. The County’s position would leave 15 those unpaid deputies exposed to personal liability, left to pay the costs of their own 16 defense, while simultaneously leaving members of the public like Loya without any 17 realistic chance of financial recourse. To put the matter delicately, such a result would 18 seem to be at odds with sound public policy. The Legislature may opt for such a

25

1 course, but we would need an unambiguous expression of legislative intent, far from 2 what we have at present. 3 {36} The County argues that the more specific public employee definition—law 4 enforcement officer—should prevail over more general provisions touching on the 5 same subject. The County’s argument proceeds as follows: Officer Gutierrez was 6 acting in a law enforcement officer capacity when he stopped and arrested Loya, the 7 term “law enforcement officer” is a more specific subcategory of “public employee” 8 than “persons acting on behalf of,” so “law enforcement officer” should be the 9 operative category. 10 {37} The proposition that specific prevails over general stems from a case where the 11 notice requirements stated within a statute conflicted with the notice requirements set 12 forth in a rule. Prod. Credit Ass’n v. Williamson, 1988-NMSC-041, 107 N.M. 212, 13 755 P.2d 56. This Court held that the statute addressed the specific type of proceeding 14 at issue in the case and was therefore controlling over the rule which addressed 15 general notice requirements, hence creating the specific over general rule of statutory 16 interpretation. Id. ¶ 5. 17 {38} Here, we are not dealing with different parts of a statute or a conflict between 18 a statute and a rule; we are looking at one definition. The definition of “public

26

1 employee” includes 18 different categories. See § 41-4-3(F). “Law enforcement 2 officer” might be more focused than “persons acting on behalf or in service of a 3 governmental entity in any official capacity,” but that does not make it more specific 4 for purposes of statutory construction. The Legislature purposely listed multiple 5 categories, and we must assume it did so for good reason. We cannot allow the 6 County to limit the categories available to Officer Gutierrez without ignoring the 7 clear intent of the Legislature. As a result, we decline to adopt the County’s position 8 that Officer Gutierrez must meet the “law enforcement officer” definition in order to 9 be recognized as a “public employee.”

10 The Duty To Provide a Defense In a Section 1983 Action Is Not Subject To the 11 State’s Assertion Of Sovereign Immunity

12 {39} The County next argues that even if Officer Gutierrez is a “public employee” 13 under the NMTCA, there is no duty to provide a legal defense here because both the 14 County and Officer Gutierrez are immune from liability. Under the NMTCA, the 15 State’s general policy is that “governmental entities and public employees shall only 16 be liable within the limitations of the Tort Claims Act.” Section 41-4-2(A). The 17 County interprets this policy statement to mean that it has a duty to defend its 18 employees only when it is or could be liable for a tort for which sovereign immunity

27

1 has been waived under the NMTCA. 2 {40} The NMTCA asserts sovereign immunity from liability for any tort except as 3 waived by Sections 41-4-5 to -12. See § 41-4-4(A). Here, the County argues it is 4 immune from suit because none of the stated waiver exceptions apply. Specifically, 5 Officer Gutierrez cannot be sued under Section 41-4-12,2 the only waiver exception 6 otherwise applicable to this situation, because, as stated earlier in this opinion, 7 Officer Gutierrez is not a full time salaried “law enforcement officer” for the County. 8 If there can be no NMTCA liability, then the County has no duty to defend. With 9 respect, the County misperceives the law in several respects. 10 {41} The terms “waiver” and “sovereign immunity” do not appear anywhere in the 11 text of Section 41-4-4(B), the provision that sets forth the County’s duty to provide 12 a legal defense. In order to accept the County’s argument that the defense obligation 13 is dependent upon a statutory waiver of sovereign immunity, we would have to read

2

14 Section 41-4-12, liability for law enforcement officers, waives immunity for 15 liability from:

16 personal injury, bodily injury, wrongful death or property damage 17 resulting from assault, battery, false imprisonment, false arrest, 18 malicious prosecution, abuse of process, . . . or deprivation of any rights 19 privileges or immunities secured by the constitution and laws of the 20 United States or New Mexico when caused by law enforcement officers 21 while acting within the scope of their duties.

28

1 words into Section 41-4-4(B), limiting the County’s defense obligation to actions 2 brought under one of the torts for which sovereign immunity has been waived. But 3 Section 41-4-4(B) does not say that; it imposes no such limitation. The statute reads, 4 “a governmental entity [the County] shall provide a defense . . . when liability is 5 sought for” (1) “any tort” or (2) “any violation of . . . any rights, privileges or 6 immunities secured by the constitution and laws of the United States [civil rights 7 claims] . . . .” Id. Textually then, Section 41-4-4(B) requires a defense equally for (1) 8 claims that are torts for which sovereign immunity has been waived, and (2) claims 9 that are not torts (civil rights claims) for which sovereign immunity has not been 10 waived under the NMTCA. 11 {42} In addition to being at odds with the statute’s text, the County’s position would 12 seem to contradict settled insurance law and the expectations that normally arise with 13 respect to an insurer’s duty to defend. It is the norm that an insurer, though denying 14 coverage and liability, must nonetheless defend its insured unless and until it receives 15 a judicial ruling in its favor relieving it of any further obligations. See Miller v. Triad 16 Adoption & Counseling Servs., Inc., 2003-NMCA-055, ¶ 9, 133 N.M. 544, 65 P.3d 17 1099 (“If the allegations of the complaint or the alleged facts tend to show that an 18 occurrence comes within the coverage of the policy, the insurer has a duty to defend

29

1 regardless of the ultimate liability of the insured.”); see also Lujan v. Gonzales, 1972- 2 NMCA-098, ¶ 22, 84 N.M. 229, 501 P.2d 673 (an insurer’s “good faith belief that 3 there was no coverage . . . is not a defense to the breach of the duty to defend”). 4 {43} Here, contrastingly, the County, while denying any liability to Loya for Officer 5 Gutierrez’s actions, wants to be relieved of any duty to defend Officer Gutierrez even 6 before it obtains a ruling in its favor. The County, unlike a normal insurer, would 7 leave Officer Gutierrez, in the position of an insured, to fight off liability on his own 8 at his own expense. This would appear to fly in the face of Section 41-4-4(B) which 9 equates the duties of the County with the duties of an insurer. See § 41-4-4(B) 10 (“Unless an insurance carrier provides a defense, a governmental entity shall provide 11 a defense . . . for any public employee when liability is sought for” (1) a tort or (2) 12 civil rights violations under federal or state law.) 13 {44} Focusing on the specific rights and obligations set forth in the NMTCA, 14 Section 41-4-4(A) asserts sovereign immunity from liability except as waived; 15 however, the assertion is only for immunity from tort liability, not civil rights 16 liability. See § 41-4-2(B) (“Liability for acts or omissions under the Tort Claims Act 17 shall be based upon the traditional tort concepts of duty and . . . standard of care.”); 18 § 41-4-4(A) (“A governmental entity and any public employee . . . are granted

30

1 immunity from liability for any tort except as waived by . . . Sections 41-4-5 through 2 41-4-12.”). 3 {45} The NMTCA does not grant immunity from liability for federal civil rights 4 actions, nor could it do so under the Supremacy Clause of the United States 5 Constitution. See U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the 6 United States which shall be made in Pursuance thereof . . . shall be the supreme Law 7 of the Land.”). See also Howlett v. Rose, 496 U.S. 356, 375-76 (1990) (noting that 8 state laws that attempt to provide for immunities “over and above those already 9 provided in § 1983” are preempted); Martinez v. California, 444 U.S. 277, 284, n. 8 10 (1980) (noting that “[c]onduct by persons acting under color of state law which is 11 wrongful under 42 U.S.C. § 1983 . . . cannot be immunized by state law” because a 12 “construction of the federal statute which permitted a state immunity defense to have 13 controlling effect would transmute a basic guarantee into an illusory promise; and the 14 supremacy clause of the Constitution insures that the proper construction may be 15 enforced” (internal quotation marks and citations omitted)). Government officials can 16 be sued in their individual capacities for damages under Section 1983, Hafer v. Melo, 17 502 U.S. 21, 30-31 (1991); and in their official capacity for injunctive relief, Vann v. 18 U.S. Dep’t of Interior, 701 F.3d 927, 929 (D.C. Cir. 2012).

31

1 {46} It follows, therefore, that the listed waivers, including Section 41-4-12, are only 2 relevant when liability is sought for the torts listed therein.3 But here, the suit Loya 3 brought against Officer Gutierrez alleges violations of federally protected 4 constitutional rights under Section 1983, and does not allege tort liability. Loya, 5 2014-NMCA-028, ¶ 8. Accordingly, the waiver exceptions under Section 41-4-4(A) 6 would seem to have no bearing on the County’s obligation to provide a defense when 7 liability is sought against its employee for violation of federal constitutional rights. 8 {47} The same is true for the County’s duty to indemnify Officer Gutierrez in the 9 event of a judgment against him. The County must pay that judgment under the clear 10 language of the NMTCA. See § 41-4-4(D) (“A governmental entity shall pay any 11 settlement or any final judgment entered against a public employee for” (1) any tort 12 or (2) violation of federal constitutional rights.). An award of punitive damages, 13 which are not even authorized under the NMTCA, Section 41-4-19(D), must also be

3

14 Section 41-4-12 is essentially a restatement of the provisions of the former 15 Peace Officers Liability Act (POLA). See Ruth L. Kovnat, Torts: Sovereign and 16 Governmental Immunity in New Mexico, 6 N.M. L. Rev. 249, 264 (1976). POLA was 16 enacted in 1973 “to provide a permissive method whereby the state or a local public 17 body may elect to protect peace officers from personal liability arising out of certain 18 acts committed during the performance of their activities . . . and to compensate the 19 individuals wrongfully harmed by these actions.” 1973 N.M. Laws, ch. 194, § 2. 20 POLA was repealed upon the enactment of the NMTCA. See Kovnat, supra, 255-64.

32

1 paid by the governmental entity/insurer under the NMTCA if sustained “under the 2 substantive law of a jurisdiction other than New Mexico, including . . . the United 3 States of America.” Section 41-4-4(C). Here again, there appears to be no statutory 4 link between the County’s obligation to defend and indemnify a public employee and 5 the separate question of whether the County can be held liable for one of the torts 6 enumerated in the NMTCA for which sovereign immunity has been waived. 7 {48} History supports our conclusion. The NMTCA, as originally enacted, only 8 required a governmental entity to provide a defense when liability was alleged for 9 torts committed by the employee. See 1976 N.M. Laws, ch. 58, § 3(C). Under the 10 original statute, it is possible that the obligation of the governmental entity to provide 11 a defense was dependent upon express waiver of liability because the statute only 12 required the entity to provide a defense for tort actions. If the statute today read as it 13 did in 1976, it might have been necessary for Officer Gutierrez to fit within one of the 14 waiver exceptions in order to be provided with a defense. See id. (“When liability is 15 alleged against any public employee for any torts alleged to have been committed 16 within the scope of his duty, whether or not alleged to have been committed 17 maliciously, fraudulently or without justifiable cause, the governmental entity shall 18 provide a defense.”)

33

1 {49} In 1977, however, the Legislature amended the statute and added a subsection 2 to the defense provision to require a governmental entity to provide a defense when 3 liability is sought for any violation of constitutional rights as well as for commission 4 of the specific torts for which liability was waived in the Act. See 1977 N.M. Laws, 5 ch. 386, § 3(C) (“When liability is alleged against any public employee for any torts 6 alleged to have been committed within the scope of his duty, or for a violation of 7 property rights or any rights, privileges or immunities secured by the constitution . . . 8 the governmental entity shall provide a defense and pay any settlement or 9 judgment.”). Thus, the amendment expanded the duty to defend. 10 {50} It is clear from the added subsection, therefore, that there exists a clear right to 11 defense against civil rights claims with no reference to assertion of waiver of 12 immunity from those claims. See § 41-4-4(A). If the Legislature intended to condition 13 the duty to provide a defense upon a finding that immunity is waived, it would not 14 have amended the original statute to require an entity to provide a defense against 15 civil rights violations without also asserting immunity for those same violations. 16 {51} All of this makes sound policy sense. If a police officer or other public 17 employee can be sued under federal law for violation of federally-secured 18 constitutional rights while acting within the scope of his or her duty, sound public

34

1 policy supports a county not abandoning its officer, but coming to the officer’s 2 assistance with a legal defense and indemnification if necessary. Therefore, showing 3 waiver of tort liability is not required before a governmental entity is obligated to 4 provide its employee with a defense in a Section 1983 action where there are no tort 5 claims asserted. 6 Officer Gutierrez Was Not Acting As an Independent Contractor 7 {52} Because we determine that Officer Gutierrez otherwise meets the “public 8 employee” definition, we now address the County’s final argument that he is 9 excluded as an independent contractor. See § 41-4-3(F) (“‘[P]ublic employee’ means 10 an officer, employee or servant of a governmental entity, excluding independent 11 contractors.”). The district court determined that Officer Gutierrez failed to meet the 12 definition of “public employee,” so it did not reach this issue. The County argues that 13 even if Officer Gutierrez is otherwise a “public employee” for purposes of the 14 NMTCA, he was nonetheless acting as an “independent contractor” when he arrested, 15 charged, and prosecuted Loya. 16 {53} We start by questioning, without deciding, whether a sheriff’s deputy could 17 ever “act” as an “independent contractor.” The common law rule, undisturbed by New 18 Mexico statute, has long established that a deputy acts on behalf of his sheriff. We are

35

1 unaware of any situation in which a sheriff has lawfully commissioned an individual 2 to serve as a deputy without also controlling, or reserving control over, the manner 3 and means by which that deputy exercises the authority conferred upon him by the 4 sheriff. A functional law enforcement system requires accountability and uniformity 5 among the officers. If a sheriff no longer had the duty to oversee the actions of sworn 6 deputies, chaos or at least a lack of critical accountability would ensue. Rightfully so, 7 the public would question such a rogue system of law enforcement. We have grave 8 doubts whether our Legislature would tolerate such a system. 9 {54} That said, the County offers Segura v. Colombe to support its position that a 10 sheriff’s deputy can act as an independent contractor. 895 F. Supp. 2d 1141 (D.N.M. 11 2012). In that case, the federal district court determined that the County did not 12 exercise sufficient control over the deputy’s activities to render the relationship one 13 of employer and employee and thus found that the officer was acting as an 14 independent contractor. Id. at 1148-49. 15 {55} In reaching its determination, the Segura court applied the test announced by 16 this Court in Celaya, 2004-NMSC-005, ¶ 15. Segura, 895 F. Supp. 2d at 1149. In 17 Celaya, this Court held that a strict application of the right-to-control test may lead 18 to inconsistencies when analyzing whether an individual is an independent contractor

36

1 for purposes of the NMTCA. We instead adopted the multi-factor analysis in 2 Restatement (Second) of Agency, § 220(2)(a)-(j) (1958), which includes:

3 1) the type of occupation and whether it is usually performed without 4 supervision; 2) the skill required for the occupation; 3) whether the 5 employer supplies the instrumentalities or tools for the person doing the 6 work; 4) the length of time the person is employed; 5) the method of 7 payment, whether by time or job; 6) whether the work is part of the 8 regular business of the employer; 7) whether the parties intended to 9 create an employment relationship; and 8) whether the principal is 10 engaged in business.

11 Celaya, 2004-NMSC-005, ¶ 15. The facts in Celaya involved a volunteer chaplain for 12 the sheriff’s department who was in an accident while driving a department vehicle. 13 In that case, the right-to-control analysis alone could not resolve the issue of whether 14 a volunteer chaplain was an independent contractor under the NMTCA. Thus, it was 15 necessary to go beyond right to control to determine the relationship between the 16 chaplain and the sheriff’s department. 17 {56} No such further inquiry is necessary here. In the case of a sworn sheriff’s 18 deputy engaged in enforcing state law on behalf of the county, there is a clear right 19 to control—indeed an obligation to control—the actions of a deputy. When that right 20 to control is so fundamentally a part of the relationship, we find it unnecessary to 21 analyze the relationship under the additional factors announced in Celaya.

37

1 {57} We note from our reading of Segura that, unlike the present case, the parties 2 there presented very little evidentiary support for the proposition that the deputy was 3 not an independent contractor. Beyond that difference, however, we find the federal 4 court’s reasoning unpersuasive for the reasons stated as a matter of sound legal 5 policy. 6 CONCLUSION 7 {58} We hold that the County must provide Officer Gutierrez with a legal defense, 8 including costs and attorney’s fees in conformity with the NMTCA. We therefore 9 reverse the entry of summary judgment in favor of the County and remand to the 10 district court for further proceedings consistent with this ruling. 11 {59} IT IS SO ORDERED.

12 ______________________________ 13 RICHARD C. BOSSON, Justice

14 WE CONCUR:

15 ___________________________________ 16 PETRA JIMENEZ MAES, Justice

38

1 ___________________________________ 2 EDWARD L. CHÁVEZ, Justice

3 ___________________________________ 4 CHARLES W. DANIELS, Justice

5 ___________________________________ 6 ABIGAIL P. ARAGÓN, Judge 7 Sitting by Designation