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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1

THE ESTATE OF JOSEPH GLENN 2 PRUITT, through its Personal 3 Representative TODD HOLMES , 4

Plaintiff

- Appellant, 5

v. No. A

- 1

- CA

- 34618 6

JAMES GUINN and ROGER 7 SCHOOLCRAFT, 8

Defendants

- Appellees. 9

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 10 Jerry H . Ritter, District Judge 11

J. Robert Beauvais
, P.A. 12 J. Robert Beauvais 13 Ruidoso , NM 14
for Appellant 15

Brennan & Sullivan, P.A. 16 Frank D. Weissbarth 17 James P. Sullivan 18 Santa Fe, NM 19
for Appellees 20

MEMORANDUM OPINION 21

VANZI , Judge. 222

{1} Todd Holmes (Plaintiff), as personal representative of the estate of Jos eph 1
Glenn Pruitt, alleges that James Guinn and Roger Schoolcraft (collectively, 2

Defendants) , both officers in the Alamogordo Police Department, breached their 3
statutory duties when they failed to arrest or file a complaint against Lawrence 4

Tarbert, and that such breach caused the death of Pruitt , who w as later killed by 5

Tarbert

. Both parties file d motions for summary judgment. The district court 6

concluded that Defendants had not breached their dut ies as a matter of law and 7
granted Defendants ’ motion and denied Plaintiff’s motion

. We affirm

. 8

BACKGROUND 9

{2 } Because this is a memorandum opinion and the parties are familiar with the 10
facts and procedural posture of this case, w e set out only the facts pertinent to the 11
issues analyzed. 12

I. Factual Background 13

{3 } Plaintiff did not specifically dispute the following facts, which were set out 14
in Defendants’ motion for summary judgment. See Rule 1

- 056 (D)(2) NMRA 15

( stating that, in the non

- movant’s response, “ [e] ach fact in dispute shall be 16
numbered, shall refer with pa rticularity to those portions of the record upon which 17
the opposing party relies, and shall state the number of the moving party’ s fact that 18
is disputed. All material facts set forth in the statement of the moving party shall be 19
deemed admitted unless spec ifically controverted. ”). In January 2011, Alamogordo 203

Police Department officers began investigating the theft of a firearm from Alamo 1

Area Auto Sales (Alamo) . A few weeks later, the owner of the firearm, who was 2

also the owner of Alamo and Tarbert’s forme r employer , reported that the gun had 3
been returned. At the owner’s request, the Alamogordo Police Department did not 4
question his employees about the matter and the owner later sold the gun to a third 5

party. 6

{4 } Officers then opened a n investigation into the owner’s allegations that 7
Tarbert had taken money from Al amo and destroyed its computerized records. In 8
the course of that investigation, an officer spoke to Thomas Siple
, who said he had 9

been Tarbert’s roommate and worked with him at Alamo

. Siple told the officer that 10

both he and Tarbert had fired the gun that had been stolen from Alamo while the 11

two were together in the nearby Red Hills; that Tarbert had provided the gun on 12

that occasion; and that the gun was eventually returned to the dealership. He 13
repeated these allegations in a subsequen t interview co nducted by Officer 14

Schoolcraft. 15

{5 } In May 2011, Tarbert went to the Alamogordo Police Department to 16
reiterate his allegations, first made in March 2011, that the owner w as harassing 17

him and had engaged in fraudulent activity. He w as interviewed by Officer Guinn. 18
During the cours e of the interview, Tarbert stated that he had been convict ed of a 19
felony in Massachusetts and that his judgment and sentence did not prohibit him 204

from possessing a firearm

. He also said that , at some time in the past, he had 1
possessed a gun provided by Siple

. 2

{6 } Officer Schoolcraft also interviewed Tarbert . Tarbert told Officer 3
Schoolcraft that he had not taken the gun from Alamo and that Siple h ad provided 4
the gun for their shooting excursion . He acknowledged that it might have been the 5

same gun taken from and later returned to the dealership. Plaintiff alleges that 6

Tarbert killed Pruitt approximately ten days after this interview, at a time when 7

Tarbert and Pruitt were roommates. 8

II. Procedural Background 9

{7 } Plaintiff’s c omplaint alleged that Defendants were negligent for faili ng to 10
arrest and charge Tarbert. Specifically, Plaintiff alleged : 11

1 0. Despite Defendants’ knowledge that Tarbert had 12 confessed to a felony and was a suspect in another 13 felony, Defendants did nothing to arrest or charge Tarbert 14 with any crime. Instead, Defendants released Tarbert and 15 did nothing to follow up on a warrant or criminal 16 charges. 17

11

. There was and is no reasonable excuse or 18 justification for Defendants’ failure to pursue charges and 19 arrest Tarbert. 20
Plaintiff further alleged : 21

17. Defendant[] s [’] breache d the [ir statutory] duties 22 when they failed to arrest and pursue charges against 23 Ta rbert for being a felon in possession of a firearm

. 24 Defendants failed to exercise the care of reasonably 255 prudent and qualified officers while investigating 1 Tarbert. 2

18. As a direct and proximate result of Defendants’ 3 failure to arrest and pursue charges against Tarbert, 4 Tarbert was not jailed and remained free which gave him 5 the opportunity to batter and kill

. . . Pruitt. 6 (Emphasis added.) Plaintiff relie s on two distinct statutes to define Defendants’ 7
duty. 1 First, he cites to NMSA 1978, Section 4

- 41

- 2 (Kearny Code, Sheriffs, § 4, 8

(1915, amended 2018) , which provides that officers shall “ apprehend and commit 9
to jail, all felons and traitors , and cause all offenders to keep the peace and to 10
appear at the next term of the court and answer such char ges as may be preferred 11
against them. ” (Emphasis added.) Second, he points to NMSA 1978, Section 29

- 1

- 12

1 ( 1979 ) , whose terms provide, in relevant part, that it is 13
the duty of every sheriff, deputy sheriff, constable and 14 every other peace officer to investi gate all violations of 15 the criminal laws of the state which are called to the 16 attention of any such officer or of which he is aware, and 17 it is also declared the duty of every such officer to 18 diligently file a complaint or information, if the 19 circumstances are such as to indicate to a reasonably 20 prudent person that such action should be taken [.] 21

1 Plaintiff also cited NMSA 1978, Section 3

- 13

- 2 (A) (4) (d) (1988) , which provides that “[a] police officer of a municipality shall[] . . . apprehend any person in the act of violating the laws of the state or the ordinances of the municipality and bring him before competent authority for examination and trial.” Because Tarbert was not in the act of violating a law when Defendants interviewed him, this statute finds no application here.6

(Emphasis added.) Defendants do not dispute the applicability of the cited statutes 1

to this action or that immunity under the New Mexico Tort Claims Act does not 2

app ly here

. See Torres v. State , 1995

- NMSC

- 025, ¶ 11, 119 N.M. 609, 894 P.2d 3
386 (noting that our cases recognize private causes of action “under Section 41

- 4

- 4

12 [of the New Mexico Tort Claims Act] when [a] law enforcement officer’s 5
negligent failure to disch arge duties under Section 29

- 1

- 1 results in personal 6
injury.” 7

{8 } Both parties moved for summary judgment on the narrow issue of whether 8
Defendants had breached their statutory duties by failing to arrest T arbert or file a 9
complaint against him for being a felon in possession of a firearm 2 contrary to 10

NMSA 1978, § 30

- 7

- 16 ( 2001 , as amended through 2018 )

. A fter a hearing on the 11

motions, the district court found that, while there were questions of material fact as 12
to whether Tarbert actually posse ssed a firearm, the undisputed facts demonstrated 13

that Defendants did not have probable cause to believe that Tarbert was a felon as 14

2 To the extent Plaintiff argues that summary judgment was improper because there were questions of material fact as to whether Defendant s should have filed a complaint against Tarbert for stealing a firearm from his employer or conspiring to commit other crimes, we decline to address these contentions because they were not raised in the motions for summary judgment nor decided by the distr ict court. See Benz v. Town Ctr. Land, LLC , 2013

- NMCA

- 111, ¶ 24, 314 P.3d 688

. ( “To preserve an issue for review on appeal, it must appear that appellant fairly invoked a ruling of the trial court on the same grounds argued in the appellate court.” (internal quotation marks and citation omitted) ); Crutchfield v. N

. M

. Dep ’ t of Taxation & Revenue , 2005

- NMCA

- 022, ¶ 14, 137 N.M. 26, 106 P.3d 1273 ( declining to address an unpreserved issue ).7

defined by Section 30

- 7

- 16(C)(3) . It therefore found that Defendants did not 1
breach their statutory duties as a matter of l aw and denied Plaintiff’s motion while 2
granting Defendants’ motion. Plaintiff appealed. 3

DISCUSSION 4

{9 } Courts reviewing a motion for summary judgment must review the facts and 5
make all reasonable inferences in the light most favorable to the non

- moving 6

party. Ph oenix Funding, LLC v. Aurora Loan Servs., LLC , 2017

- NMSC

- 010, ¶ 17, 7

390 P.3d 174. Summary judgment is appropriate when “the pleadings, depositions, 8
answers to interrogatories and admissions on file, together with the affidavits, if 9
any, show that there is no genuine issue as to any material fact and that the moving 10
party is entitled to a judgment as a m atter of law.” Rule 1

- 056(C). We review these 11
questions of law de novo

. Self v. United Parcel Serv., Inc. , 1998

- NMSC

- 046, ¶ 6, 12

126 N.M. 396, 970 P.2 d 582. 13

{ 1 0 } It is axiomatic that a statute setting forth an officer’s duties cannot nullify 14
Fourth Amendment protections. See Muncy v. Beutler , 2014 WL 3962464, at *7 15
(N.D. Ohio Aug. 13, 2014) (rejecting an argument that officers’ warrantless entry 16

into th e plaintiff’s home was reasonable because a state statute required officers to 17
arrest someone observed committing a felony and stating that “ the statute cannot 18
override clearly established Fourth A mendment jurisprudence”); cf

. Torres , 1995

- 19

NMSC

- 025, ¶ 10 (noting that, while “ the [L] egislature, as the voice of the people,

. 208

. . make [s] public policy [
, ] ” it does so “[w] ith deference always to constitutional 1
principles ”). Hence, an arrest or complaint must be supported by probable cause 2
even when filed pursua nt to clearly articulated statutory duties

. See Milliron v. Cty

. 3
of San Juan , 2016

- NMC A

- 096, ¶ ¶ 29

- 30 , 384 P.3d 1089 (holding that an officer 4
did not breach his duty under Section 29

- 1

- 1 by failing to arrest where he lacked 5
probable cause to arrest and the statutes defining the traffic offense s committed did 6

not authorize custodial arrest); Dickson v. City of Clovis , 2010

- NMCA

- 058, ¶ 7, 7

148 N.M. 831, 242 P.3d 398 (“ As has been well established in New Mexico, arrest 8
without probable cause is

. . . a violatio n of the Fourth Amendment protection 9
against illegal search and seizure. ”)

. 10

{1 1 } We therefore examine whether the facts known to Defendants after 11
interviewing Tarbert would have indicated to a “reasonably prudent person” that 12
there was probable cause to arrest Tarbert or to file a complaint against him for 13
possession of a firearm contrary to Section 30

- 7

- 16

. See § 29

- 1

- 1 ( stating that an 14
officer has a duty to file a complaint “if the circumstances are such as to indicate to 15

a r easonably prudent person that such action should be taken”); Torres , 1995

- 16

NMSC

- 025, ¶ 20 (“[A] failure to act, to be negligent, must be a failure to do an act 17
which a reasonably prudent and qualified law enforcement officer, in the exercise 18
of ordinary car e, would do .” (internal quotation marks and citation omitted) ). 199

{1 2 } The facts surrounding a suspect’s sentence are important to determining 1
whether the suspect qualifies as a “felon” within the meaning of Section 30

- 7

- 16. 2
To be guilty of being a felon in possession of a firearm, the defendant must have 3
possessed a firearm and “ in the preceding ten years, [been] convicted and 4
sentenced to one or more years imprisonment by a court

. . . of any state .” UJI 14

- 5

701 NMRA ; § 30

- 7

- 16 (C)(3)(a)

. Under Section 30

- 7

- 16, a “felon” does not include 6
a defendant who was convicted of a felony but received a deferred sentence. 7

Section 30

- 7

- 16(C)(3)(c); UJI 14

- 701 c ommittee c ommen t a ry. Instead, t o be a 8

“felon,” the defendant must have been sentenced to imprisonment of over a year

. 9

State v. Sundeen , 2001

- NMSC

- 0 06 , ¶ 1, 130 N.M. 83, 17 P.3d 1019 (per curiam) 10
(stating that the statute requires “ proof that a defendant was actually sentenced to 11
prison for a year or more ”)

. It is not sufficient that the violated statute permi ts 12
sentences of a year or more. Id

. 13

{1 3 } The district court properly concluded that the critical issue here was whether 14
Defendants had probable cause to believe that Tarbert was a felon within the 15
meaning of the statute. “An officer has probable cause to arrest when the facts and 16

c ircumstances within the officer’ s knowledge are sufficient to warrant the officer 17
to believe that an offense has been or is being committed.” State v. Morales , 2008

- 18

NM CA

- 102, ¶ 11, 144 N.M. 537, 189 P.3d 670 (internal quotation marks and 19

citation omitted). “Probable cause requires more than a bare suspicion of criminal 2010

activity, but it does not require evidence sufficient to support a conviction.” 1

Benavidez v. Shutiva , 2015

- NMC A

- 065, ¶ 13, 350 P.3d 1234. Prob able cause must 2

“ be judged by facts as they appeared at the time , not by later

- discovered facts [
, ] ” 3
Weststar Mortg. Corp. v. Jackson , 2003

- NMS C

- 002, ¶ 16, 133 N.M. 114, 61 P.3d 4

823 , and “ in relation to the circumstances as they would have appeared to a 5
prudent, cautious and trained police officer.” State v. Ochoa , 2004

- NMSC

- 023, ¶ 6
9, 135 N.M. 781, 93 P.3d 1286 (internal quotat ion marks and citation omitted)

. 7

“ T he existence of ‘probable cause[] ’

. . . involves a case

- by

- case examination of 8
the facts, and no two cases are precisely alike. ” State v. Aull , 1967

- NMSC

- 233, ¶ 9

19, 78 N.M. 607, 435 P.2d 437. Finally, “whether the facts amount 10

to proba ble cause [] is a question of law and shall be decided by the trial judge.” 11

Weststar Mortg. Corp.
, 2003

- NMSC

- 002, ¶ 17 (internal quotation marks and 12

citation omitted). 13

{1 4 } Here, it is undisputed that Tarbert told Defendants that he had been 14

convicted of a felony in Massachusetts 3 and that the judgment and sentence did not 15
prohibit him from possessing firearms. Plaintiff adduces no evidence that 16

3 In his affidavit, Officer Schoolcraft states that Tarbert was convicted of embezzlement in 2003. It is not clear whether this information was disclosed to Defendants during the interviews with Tarbert or obtained later , as Officer Guinn’s report of his interview with Tarbert does not include this information. Assumin g that Defendants obtained this information at the time they interviewed Tarbert, this fact does not change our analysis.11

Defendants knew any other information about Tarbert’s conviction and sentence 1

after the interviews with Tarbert. 2

{1 5 } Given that not every convicted felon is a “felon” unde r Section 30

- 7

- 3

16 (C)(3) , w e agree with the district court that , under the particular circumstances 4

of this case
, Defendants’ interviews with Tarbert did not establish probable cause 5

for arrest or the filing of a complaint

. Because of the nuances of Section 30

- 7

- 6

16(C)(3) , Tarbert’s statement that he was a felon was insufficient, on its own, to 7
establish probable cause. T he re is no evidence that Defendants knew any other 8

i nformation about Tarbert ’s sentence such as the term of imprisonment, if any ; 9

whether th e sentence was deferred ; or the amount of probationary time , if any

. 4 See 10

Sundeen , 2001

- NMSC

- 006, ¶ 1 (stating that “b ecause [the d] efendant was only 11
sentenced to eighteen months probation and a sixty

- day suspended sentence, [the 12

d] efendant [could not] be considered a felon under the statute ”). In addition, 13
Tarbert stated that his judgment and sentence did not prohibit him from possessing 14

a firearm, which would suggest to a reasonable officer that more inquiry into 15

Tarbert’s sentence was necessary to assess whether he was a felon under Section 16

30

- 7

- 16. Cf

. Dickson , 2 010

- NMCA

- 058, ¶¶ 9, 13 (holding that an officer 17
reasonably believed there was probable cause to arrest where he had ( 1) “ observed 18

4 Plaintiff does not allege in his complaint or motion for summary judgment that Defendants were negligent in failing to further inves tigate Tarbert’s M assachusetts conviction.12

a firearm in [the p]laintiff’s car ; ” ( 2) the p laintiff “ confirmed ownership of the 1

gun ; ” and ( 3) “ dispatch

. . . informed [the officer] that [the p] laintiff was a felon ,” 2

and ( 4) although the plaintiff told the officer that he had received a deferred 3
sentence, the plaintiff’s documentation of the sentence did not “ actua lly dispute the 4
information that dispatch provided [to the officer]”)

. 5

{1 6 } Although P laintiff states that “it is clear Defendants possessed probable 6

cause to arrest Tarbert [
, ] ” he offers no analysis of the facts vis á vis the elements of 7

Section 30

- 7

- 16, and “ provide s no evidence or authority to show that a reasonable 8

officer would

. . . have made an arrest .” Dickson , 2010

- NMC A

- 058, ¶ 11

. Nor does 9

Plaintiff address the relevance of Tarbert’s statement that he was not prohibited 10
from possessi ng firearms or the fact that Tarbert voluntarily admitted that he was a 11
convicted felon on multiple occasions and went to the police station multiple times. 12
The sum total of Plaintiff’s argument is a citation to Maryland v. Pringle , 540 U.S. 13

366 (2003)
, for the unrema rkable proposition s that “[t] he probable cause stan d ard 14
is incapable of precise definition or quantification into percentages because it deals 15

with probabilities and depends on the totality of the circumstances” and that “ the 16

substance of all the definitio ns of probable cause is a reasonable ground for belief 17
of guilt, and that the belief of guilt must be particularized with respect to the 18

p erson to be searched or seized.” Given the fact

- specific inquiry necessary to a 19
probable cause determination, Plaintif f’s single case citation and conclusory 2013

assertion that Tarbert’s statements alone provide probable cause and thereby 1
compelled Tarbert’s arrest simply do not adequately address the issue. See Holt v. 2

N

. M

. Dep ’ t of Taxation & Revenue , 2002

- NMSC

- 034, ¶ 5 n.1
, 1 33 N.M. 11, 59 3

P.3d 491 ( stating that petitioners “should properly present this court with the 4
issues, arguments, and proper authority. Mere reference in a conclusory statement 5

will not suffice and is in violation of our rules of appellate procedure.” (internal 6
quotation marks and citation omitted))

. 7

{1 7 } W e conclude that , under the circumstances here, there was no probable 8
cause to arrest Tarbert or file a complaint against him after the May 2011 police 9

interviews

. Henc e, we uphold the district court’s conclusion that Defendants did 10
not breach their statutory duties as to this issue

. 11

{1 8 } Plaintiff posits two final arguments. First, a lthough Plaintiff himself 12
affirmatively asked the district court to determine the quest ion in his motion for 13
summary judgment, Plaintiff now reverses course on appeal in arguing that the 14

district court should not have addressed whether Defendants breached their 15
statutory duties because “[t]hese types of findings . . . are improper as they in volve 16
a function usually reserved to the jury.” We agree that w hether a duty was 17

breached is usually a question for the jury. Pollock v. State Highway & Transp. 18

Dep ’ t , 1999

- NMCA

- 083, ¶ 20, 127 N.M. 521, 984 P.2d 768 (stating that 19

“breach of duty and proximate cause are factual questions for the jury”). However, 2014

in certain circumstances “[a] court may . . . decide whether a defendant did or did 1

not breach [a] duty

. . . as a matter of law [

. ] ” Rodriguez v. Del Sol Shopping Ctr. 2

Assoc s. , L.P. , 2014

- N MSC

- 014, ¶ 24, 326 P.3d 465. Here, the question of br each 3
depends on a matter of law

— probable cause

— and the facts underlying that 4
determination are undisputed

. Therefore, it wa s appropriate for the district court to 5

decide this issue. Cf. Dickson , 2010

- NMCA

- 058, ¶ 13 (holding that the district 6
court did not err in granting summary judgment based on qualified immunity to a n 7

officer based on the district court’s determination that the officer “ reasonably 8
believed that he had probable ca use to arrest [the p]laintiff”). 9

{19 } Finally, Plaintiff argues that the district court erred when it “first found that 10
Plaintiff’s proffered facts were contested and then found that Defendant’s 11
proffered facts were uncontested” where “the proffered facts were virtually 12

identical.” Plaintiff’s argument is unavailing. As noted in our discussion, the 13
district court relied on the undisputed facts surrounding Defendants’ knowledge of 14
Tarbert’s felony conviction. Its determination that the facts within Defendants’ 15
knowledge did not rise to the level of probable cause wa s dispositive as to both of 16
the summary judgment motions, even if there were dis puted facts as to other 17

issues. 1815

CONCLUSION 1

{ 2 0 } Because there was no probable cause to support T a rbert’s arrest or the filing 2

of a complaint against him af ter his May 2011 police interviews
, we conclude that 3
Defendants did not breach their statutory duties as a matter of law. Therefore, we 4

affirm the district court’s grant of summary judgment in favor of Defendants and 5

its denial of Plaintiff’s motion for su mmary judgment

. 6

{21 } IT IS SO ORDERED. 7

_________________________________ 8 LINDA M. VANZI , Judge 9

WE CONCUR: 10

_________________________________ 11 J. MILES HANISEE , Judge 12

_________________________________ 13 BRIANA H. ZAMORA, Judge 14