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Paul Armijo v. Armando Perales; Mirabel

August 1, 2012

PAUL ARMIJO, PLAINTIFF-COUNTER-DEFENDANT- APPELLEE,
v.
ARMANDO PERALES; MIRABEL JIMENEZ; ARNOLD CHAVEZ; ADRIAN FLORES, IN THEIR INDIVIDUAL CAPACITIES, DEFENDANTS-APPELLANTS, D & M SPORTING GOODS, DEFENDANT-COUNTER-CLAIMANT, AND VILLAGE OF COLUMBUS, NEW MEXICO; EDDIE ESPINOZA, TRACY BOLDUC, BLAS GUTIERREZ, ROBERTO GUTIERREZ, BRIAN HOULTIN, ALLEN ROSENBERG, IN THEIR INDIVIDUAL CAPACITIES; SIXTH JUDICIAL DISTRICT ATTORNEY'S OFFICE; ERNIE SERA; BORDER OPERATIONS TASK FORCE, DEFENDANTS.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. 1:08-CV-00935-MV-WPL)

The opinion of the court was delivered by: McKAY, Circuit Judge.

United States Court of Appeals Tenth Circuit

PUBLISH

Elisabeth A. Shumaker Clerk of Court

Before TYMKOVICH, McKAY, and HOLMES, Circuit Judges.

This is an appeal from the district court's order denying Appellants qualified immunity in this § 1983 action. Plaintiff Paul Armijo, former police chief of the Village of Columbus in New Mexico, filed a civil suit against several individual and entity defendants, including Appellants Armando Perales, Arnold Chavez, Adrian Flores, and Mirabel Jimenez. The civil suit arose out of an earlier criminal investigation that resulted in Appellants executing search and arrest warrants against Plaintiff.

At the time in question, Appellants were criminal investigators in the district attorney's office with purview over the Village of Columbus. In early 2007, Appellant Chavez assigned Appellants Jimenez and Perales to investigate Plaintiff on allegations of improper evidence handling, inventory problems relating to both police equipment and evidence, and the mishandling of city funds and impounded vehicles. Around the same time period, on January 25, 2007, Plaintiff reported an alleged battery by the Village of Columbus mayor to state police.

A conflicting bid sheet and purchase order relating to a city firearm purchase caused Appellants to investigate Plaintiff's role in the transaction.

While the original bid sheet ordered six firearms, the purchase order revealed the city had only purchased four firearms, the city's check amounted to the value of four firearms, and the city's inventory contained four firearms. One of the officers Appellants interviewed suggested Plaintiff had purchased the other two firearms for personal use.

Based on their investigation, Appellants sought a search warrant for

Plaintiff's home.*fn1 In his supporting affidavit, Appellant Flores described his general experience with narcotic-related investigations, but the information specific to Plaintiff only detailed the questionable firearm purchase. The affidavit did not include any evidence connecting Plaintiff to other missing inventory, including drugs or money.

The search warrant, however, signed by a New Mexico district court judge, authorized a search for:

(1) Books, records and information, computerized records, receipts, notes, ledgers and other documents relating to transporting, ordering, purchasing, and/or distributing controlled substances. . .

(2) Financial documents, including but not limited to, credit card statements, tax returns, safe-deposit records, safe-deposit keys, bank records, bank statements, money orders, Western Union receipts, checking accounts records[,] cashiers checks, passbooks and other items evidencing the obtainment, concealment and/or expenditure of money.

(3) Photographs and/or video tapes including but not limited to photographs and/or video tapes of co-conspirators, weapons, assets and/or controlled substances and/or narcotics.

(4) Firearms. Any and all firearms, which may be currently reported[] stolen or altered in any manner . . . which would constitute a crime. Any and all parts, pieces, barrel ends, or components of any firearms.

(Appellants' App. at 164.) Appellants also submitted an arrest warrant for Plaintiff on charges of two counts of larceny of a firearm or, in the alternative, two counts of embezzlement. The supporting affidavit similarly detailed the facts regarding the missing firearms, including the following statement: "Investigators spoke with Columbus Police Officer Tracy Bolduc about the two missing firearms. Officer Bolduc stated that Chief Armijo had purchased one [of] the firearms for personal use and one to give to his father-in-law." (Id. at 279.)

On January 30, 2007, Appellants executed the search warrant on Plaintiff's residence. They found the two allegedly missing firearms in his home. They did not find any evidence relating to drugs, money, or other missing inventory. Appellant Perales then executed the arrest warrant and arrested Plaintiff. The charges were later dismissed with prejudice for lack of prosecution.

In his ยง 1983 complaint, Plaintiff raised a number of claims against several defendants, including claims of false arrest, false imprisonment, illegal search and seizure, and retaliation in violation of the First Amendment arising from Plaintiff's report of the mayor's alleged battery. Appellants moved for summary judgment based on qualified immunity. The district court denied summary judgment, holding the search and arrest warrants were invalid and thus Appellants were not entitled to qualified immunity on Plaintiff's false arrest, false imprisonment, and illegal search and seizure claims. Further, the district court held genuine ...


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