Smith v. Kenny (678 F. Supp. 2d 1124, 2009)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Plaintiffs’ Motion for Summary Judgment, filed July 2, 2009 (Doc. 45); (ii) the Defendants’ Motion and Memorandum for Summary Judgment Requesting Dismissal of Plaintiffs’ Complaint, filed July 6, 2009 (Doc. 47); and (iii) Defendant Cassandra Kukowski’s Motion for Summary Judgment to Dismiss Plaintiffs Linda and Matthew Smith’s Excessive Use of Force Claims, filed September 18, 2009 (Doc. 61). The Court held a hearing on October 28, 2009. The primary issues are: (i) whether Defendant Cassandra Kukowski, a Sergeant in the Albuquerque Police Department (“APD”), unlawfully seized Plaintiffs Matthew Smith and Linda Smith in their home when she called M. Smith’s cellular telephone, and instructed L. Smith and M. Smith to come outside; (ii) whether Defendant Andrew Vocasek, an APD officer, unlawfully seized L. Smith and M. Smith once they exited their home at the behest of Kukowski; (iii) whether Defendant Casey McDonnell, an APD officer, unlawfully seized Plaintiff Nathan Smith; (iv) whether any of the Defendants used excessive force in the seizure of any of the Smiths; (iv) whether Defendant Sean Kenny, a Sergeant in the APD, as the officer in command on the scene of these events, can be held liable for the actions of any of the other Defendants. The Court will grant the Smiths’ motion for summary judgment as to the following claims: (i) N. Smith’s claims of unlawful arrest and unlawful search (Counts II and IV) against McDonnell and Kenny; and (ii) L. Smith’s and M. Smith’s claims of unlawful arrest (Count II) against Vocasek, Napoleone, and Kenny. The Court will grant the Defendants’ motions for summary judgment as to the following claims: (i) all of the Smiths’ remaining claims for excessive use of force (Count III); (ii) N. Smith’s claim of unlawful extraction (Count I) against all Defendants; (iii) L. Smith’s and M. Smith’s claims of unlawful extraction (Count I) against Vocasek, Napoleone, and McDonnell; (iv) N. Smith’s claim of unlawful seizure and unlawful search (Counts II and IV) against Vocasek and Napoleone; (v) L. Smith’s and M. Smith’s claims for unlawful search (Count IV) against Kukowski and McDonnell; and (vi) N. Smith’s claim of unlawful search (Count IV) against Kukowski. The Court finds that factual issues exist as to damages on all claims, and as to liability on the following claims: (i) all of the Smiths’ claims of state-law tort liability (Count V) against all Defendants; (ii) L. Smith’s and M. Smith’s claims of unlawful extraction (Count I) against Kukowski and Kenny; (iii) N. Smith’s claim of unlawful seizure (Count II) against Kukowski; (iv) L. Smith’s and M. Smith’s claims of unlawful search (Count IV) against Vocasek, Napoleone, and Kenny; (v) L. Smith’s and M. Smith’s claims of unlawful arrest (Count II) against Kukowski; and (vi) L. Smith’s and M. Smith’s claims for unlawful arrest (Count II) against McDonnell.

FACTUAL BACKGROUND

Many of the material facts in this case are undisputed. The Court has, however, commented on the factual disputes that appear significant to the parties’ respective theories. Notwithstanding those disputes, the Court believes it can decide many of these issues in this case as a matter of law.

1. The Twisters Incident.

Kukowski is an officer in the Southeast Area Command for the APD. See Affidavit of Cassandra Kukowski ¶ 4, at 1 (executed February 27, 2009)(Doc. 17-2)(“Kukowski Aff.”). On October 18, 2007, a warrant was issued for the arrest of Raymond Lollis. Lollis was wanted for “Murder (Open Count)[;] Shooting at or from a Motor Vehicle (Great Bodily Harm); Aggravated Assault Deadly Weapon (Firearm Enhancement) 2 Counts.” Criminal Complaint — Arrest Warrant Affidavit at 1 (dated October 18, 2007), filed July 6, 2009 (Doc. 47-2).

At approximately 7:00 p.m. on October 22, 2007, Kukowski received a tip from a worker at the Twisters fast-food restaurant at 425 Eubank Blvd. in Albuquerque, New Mexico. See Kukowski Aff. ¶ 7, at 2. The worker said that she “was positive” that she had seen Lollis. See id. The worker described Lollis, described the vehicle in which she thought she had seen him — a Jeep Cherokee — and provided a license plate number. See id. At approximately 7:44 p.m. on October 22, 2007, based on the registration information for the license plate number, Kukowski placed a periodic watch on 1704 Cardenas Dr. NE, in Albuquerque, 87108, the address to which the vehicle was registered. See id. ¶¶ 8, 9, at 2. Kukowski also put a city-wide locate on the vehicle and went to the address on Cardenas to see if the vehicle was currently there. See Kukowski Depo. at 6:9-15 (Doc. 47-3). The vehicle was not at the Cardenas residence at that time. The police dispatch issued the following bulletin regarding the periodic watch:

CHECK 20 [LOCATION] FOR POSSIBLE] 27-8 [SHOOTING] OFNDR WAS JUST SEEN @ TWISTERS EUBANK & CHICO APPROX 1900 HRS., UNKNOWN] DOT [DIRECTION OF TRAVEL], ABOVE 20 [LOCATION] IS 26 [AUTO REGISTRATION] 20 [LOCATION] FOR LINDA & MATTHEW SMITH ON A '93 JEEP GRAND CHEROKEE NM 387NWP, 27-8 [SHOOTING] OFNDR IS RAYMOND CARL LOLLIS DOB 012185 WMA SSN [REDACTED] 5'9 130 REDDISH BLN HAI„BLU EYES„BAD COMPLEXION,, TATTOO DEMON LEFT ARM,, TRIBAL ON RT ARM,, HEAVY METH USER,, 48 [USE CAUTION]

Affidavit of Kevin Napoleone ¶ 4, at 1 (executed May 20, 2009), filed July 6, 2009 (Doc. 47-4)(“Napoleone Aff.”).

At approximately 10:00 p.m. on October 22, 2007, Kukowski returned to the Albuquerque Police Department Substation. See id. ¶ 12, at 3. The Smiths contend that Kukowski returned to the substation to brief the graveyard shift officers. See id. The Defendants dispute that Kukowski briefed graveyard shift officers. See Defendants’ Response to Plaintiffs’ Motion for Summary Judgment [Doc. 45] at 2, filed July 16, 2009 (Doc. 51)(“Defendants’ Response”). Kukowski’s affidavit states: “[Kukowski] returned to the Southeast substation for the October 22, 2007 10:00 p.m. graveyard shift briefing to inform Sergeant Sean Kenny of the Twisters call and periodic watch [she] had placed on the 1704 Cardenas Dr. NE address.” Kukowski Aff. ¶ 12, at 3. What Kukowski did at the briefing remains unclear, but the Court does not believe what she did at the briefing is relevant.

2. The Surveillance of 1704 Cardenas.

At about 1:00 a.m., over five hours after the Kukowski placed the periodic watch on 1704 Cardenas, Napoleone, who was conducting the watch, spotted the suspect vehicle parked at the residence. See Deposition of Kevin Napoleone at 4:11-19 (taken March 25, 2009), filed July 2, 2009 (Doc. 45-3); Napoleone Aff. ¶¶ 2-6, at 1-2. After verifying that the Jeep Cherokee was the same vehicle in which Lollis had been seen, he positioned himself near 1704 Cardenas and called other officers to come to the scene and assist. See Napoleone Aff. ¶ 6, at 2. After receiving notification from Napoleone regarding the presence of the suspect Jeep Grand Cherokee at 1704 Cardenas, Kenny established a command post nearby where he assumed overall control as the incident commander. See Deposition of Sean Kenny at 6:4-16, 33:19-21 (taken April 1, 2009), filed July 2, 2009 (Doc. 45-5); Affidavit of Sean Kenny ¶ 5, at 2 (executed May 26, 2009), filed July 6, 2009 (Doc. 47-5)(“Kenny Aff.”); id. ¶ 10, at 3.

At 1:22 a.m., Napoleone witnessed a white car arrive at the residence. The driver of the car — an unidentified male— entered the house for a short time, returned to the car at approximately 1:30 a.m., and left again. See Napoleone Depo. at 6:25-7:5, 7:11-13. At 1:30 a.m., Napoleone advised Kenny that the white car was leaving the residence. See Napoleone Depo. at 8:1-8. Because Kenny found it suspicious that a vehicle would arrive at 1:22 a.m., remain for only eight minutes, and then leave, he ordered that the vehicle be stopped. See Kenny Aff. ¶¶ 13-14, at 3. McDonnell, then posted at the corner of Cardenas and Summer, complied with Kenny’s order and stopped the vehicle. See Kenny Depo. at 9:2-8; Deposition of Casey McDonnell at 5:12, 6:1-16 (taken March 25, 2009), filed July 1, 1009 (Doc. 45-4).

3. The Alleged Detention of N. Smith and His Property.

The Smiths allege that, after McDonnell stopped the white car, he confiscated N. Smith’s cellular telephone, phone charger, and the keys to the ear. See McDonnell Depo. at 7:4-9; Deposition of Nathan Smith at 22:10-23:2 (taken May 27, 2009), filed July 2, 2009 (Doc. 45-6). McDonnell then allegedly informed N. Smith that he was taking the items to protect N. Smith’s safety. See N. Smith Depo. at 17:13-19. The Defendants insist that nothing was “confiscated;” rather, either McDonnell or N. Smith placed the keys and cellular phone on the roof of the car during the encounter. See McDonnell Depo. at 7:5-19. N. Smith was eventually — though considerably later — allowed to depart the scene in his car. See N. Smith Depo. at 44:23-45:18 (Doc. 51-3). Kenny testified that taking N. Smith’s cellular phone and detaining him was to keep N. Smith from leaving or contacting Lollis to warn him that the police were setting up a perimeter. See Kenny Aff. ¶ 16, at 4. Only after taking custody of these items did McDonnell identify N. Smith. Before this point, the Defendants were not aware of who was driving the white car. See id. at 17:20-24.

McDonnell then removed N. Smith from his car, placed him in handcuffs, placed him in the back of his police car, and transported him to the command post located at the intersection of Summer and San Pedro. See McDonnell Depo. at 8:3-6; id. at 8:16-24. According to the Smiths, Kenny ordered McDonnell to execute each of these acts, including handcuffing N. Smith. See Motion at 3. The Defendants insist that the statements cited by the Smiths show that Kenny ordered McDonnell to take N. Smith to the command post, but do not show that he ordered McDonnell to handcuff N. Smith. See Response at 3. McDonnell stated only that “Sergeant Kenny requested that I transport the driver of that car to the command post.” McDonnell Depo. at 8:5-6.

The Smiths assert that McDonnell falsely told N. Smith that there was something wrong with his vehicle registration to effectuate N. Smith’s seizure. See Motion at 4; N. Smith Depo. at 21:11-21. The Defendants dispute this assertion, though they do not provide any evidence what reason or explanation McDonnell gave N. Smith for the stop. See Response at 3; McDonnell Depo. at 10:4-8 (Doc. 47-7)(“Q. Did you tell Mr. Smith why you had stopped him? A. I don’t remember. Q. Did you make up some lie or some excuse as to why you had stopped him? A. I honestly don’t remember what I told him.”). The Smiths allege that McDonnell then formally detained N. Smith. They argue that, at this time, McDonnell knew the identity of N. Smith and had no information indicating that N. Smith had committed any crime. See McDonnell Depo. at 9:10-25. Kenny further ordered that N. Smith’s cellular phone be seized and that the car, including the trunk, be searched. See Kenny Depo. at 9:9-14 & 10:18-23. The car was searched ostensibly to ensure that the suspect, Lollis, was not inside. See id. As part of this process, McDonnell physically took hold of N. Smith, pressed his chest against the car, and secured his wrists behind his back with handcuffs. See N. Smith Depo. at 23:6-13. N. Smith remained in handcuffs during the remainder of the encounter. See id. at 23:24-25. Once N. Smith reached the command center, he was interrogated by a blonde, female sergeant of average height. See N. Smith Depo. at 31:25-32:11; id. at 33:16— 18. The sergeant asked N. Smith to identify a photograph. See id. at 32:30-33:3. N. Smith informed the officer that his brother, M. Smith, was not the individual in the photograph. See id. The sergeant then attempted to locate M. Smith’s cellular telephone number in the listing of N. Smith’s cellular telephone. See id. at 31:25-32:11. Kukowski was the only female officer at the command center, and she was a sergeant at that time. See Kukowski Depo. at 3:22-23 (Doc. 45-7); id. at 27:8-10.

4. The Extraction of M. Smith and L. Smith.

By approximately 7:40 p.m. on October 22, 2007, Kukowski had interviewed the witness who called in the tip regarding Lollis and the license plate of the vehicle. The witness was “very, very sure” that Lollis was in the vehicle. Kukowski Depo. at 5:9-13; id. at 6:4-6. The witness allegedly “knew” that the passenger in the vehicle was Lollis based on a photograph she had seen in a newspaper. See id. at 5:12-13; id. at 8:10-16. Nevertheless, Kukowski never sought a search warrant for the house where the reported vehicle was registered. See id. at 8:20-9:4. Despite the lack of a warrant, Kukowski offered to help extract the residents from 1704 Cardenas. See Kukowski Aff. ¶ 17, at 3. There was an exit plan in place for the residents of the home before Kukowski made contact with M. Smith. See Kenny Depo. at 17:14-18. As part of that plan, Kukowski was to get the telephone number for the 1704 residence, contact the occupants inside the house, and get them to leave through the front door and go to the street. See Kenny Depo. at 15:11-18; Kenny Aff. ¶ 18-22, at 4-5. Kukowski first tried the home telephone, but nobody answered. See Kukowski Depo. at 11:5-7, 11:12-23.

At or near 2:00 a.m. on October 23, 2007, Kukowski was given the cellular telephone number of a male resident of 1704 Cardenas and then placed a telephone call to that number. See Kukowski Aff. ¶ 18, at 3; Deposition of Matthew Smith at 25:8-14 (taken May 27, 2009), filed July 2, 2009 (Doc. 45-10). At about that time, a telephone call to his cellular telephone awakened M. Smith. See Affidavit of Matthew Smith ¶ 4, at 1 (executed May 10, 2009), filed July 2, 2009 (Doc. 45-8)(“M. Smith Aff.”); M. Smith Depo. at 25:8-14. Kukowski then engaged M. Smith in an approximately eight-minute telephone call. See Kukowski Depo. at 16:13-17 (Doc. 45-7); M. Smith Depo. at 26:17-19 & 29:8-18. During the conversation, Kukowski allegedly identified herself as an Albuquerque Police Officer, asked M. Smith who else was in the house with him, and instructed him to go outside. See Defendant Cassandra Kukowski’s Answer to Plaintiffs’ Complaint ¶ 16, at 3-4, filed November 3, 2008 (Doc. 12); Kukowski Depo. at 13:2-23. At first, M. Smith did not believe that Kukowski was a police officer, thinking she was just “some cute sounding girl.” M. Smith Depo. at 25:24-26:12. He also initially refused to go outside, concerned that he might “walk out [his] front door to a line of gang-bangers and get shot [just] because some cute-sounding girl on [his] phone asked [him] to exit [his] house.” Id. at 26:7-12. M. Smith testified that Kukowski never told him why his family needed to exit the house, though, when pressed, he admitted that Kukowski may have vaguely mentioned something about safety. See M. Smith Depo. at 26:20-28:19. M. Smith also asserted that Kukowski asked him who else was in the house with him, then told him to awaken his mother — the only other person whom he mentioned — and that both of them must come out and surrender themselves to the police officers waiting' outside. See Plaintiffs’ Motion ¶¶ 39^1 (citing M. Smith Aff. ¶¶ 7-9, at 1-2).

Kukowski recounts this interaction differently. According to Kukowski, she “introduced [her]self and told [M. Smith] he needed to come to the front door, bring any other occupants of the house with him, and make contact with the officers outside. [She] advised him to get warm clothes and shoes.” Kukowski Aff. ¶ 18, at 3. She insists that she did not identify herself as a police officer; rather, she told M. Smith only that she worked for the City of Albuquerque:

Q: ... [Y]ou introduced yourself as Cassandra, and you worked for the City of Albuquerque, right?

A: Uh-huh.

Q: You didn’t tell him you were a police officer?

A: No. We don’t do that in negotiations because it just works a lot better if you come up with a standard intro, and that’s what I used.

Kukowski Depo. at 13:24-14:6

M. Smith and his mother, L. Smith, complied, and both L. Smith and M. Smith left their home at approximately 2:13 a.m. See M. Smith Aff. ¶ 10; Napoleone Aff. ¶ 13, at 3. At that time, Napoleone did not know the identity of these individuals or their relationship with Lollis, and allegedly had many concerns about their motives. See Napoleone Aff. ¶ 14-16, at 8-4. After exiting the home, L. Smith continued to comply with the instructions of the officers waiting outside. See Deposition of Linda Smith at 46:19-47:25 (taken May 27, 2009), filed July 2, 2009 (Doc. 45-9). During this process, Napoleone used his gun-mounted flashlight to signal to L. Smith where she should walk. See id. at 13:6-18. L. Smith witnessed a line of armed police officers in a wide-legged stance, at least one of which carried a long gun, pointed in her direction. See L. Smith Depo. at 47:19-48:21. L. Smith was instructed to turn around, put her hands on her head, walk backwards, and then kneel down. See id. at 48:22-49:8; Napoleone Depo. at 8:14-21, 9:9-10, 10:1-4. Napoleone then took L. Smith into custody, though he contends that he did not handcuff her or M. Smith. See Napoleone Depo. at 8:14-21, 9:9-10, 10:1-4. Another officer, however, handcuffed L. Smith and placed her in a police car for transport to the command center. See id. at 49:10-14, 50:21-25.

M. Smith exited the house approximately thirty seconds after L. Smith. A line of at least eight police officers, at least three of whom had their pistols pointed at him, confronted M. Smith. See M. Smith Depo. at 30:2-8, 30:21-31:15. M. Smith likewise obeyed the police officer’s commands by turning around, putting his hands behind his head, and submitting to a pat-down and search of his pockets. See M. Smith Depo. at 31:23-32:13. He was then forced to his knees and handcuffed — though, again, allegedly by someone other than Napoleone. See id.; Napoleone Depo. ¶ 16, at 3-4. M. Smith stated that, as a result of the handcuffing, he may have had some reddening of his skin and tenderness, and that it may have lasted a few days. See M. Smith Depo. at 43:6-17.

Kenny then instructed Vocasek to come to the house and pick up the Smiths. See Vocasek Aff. ¶ 5, at 2; Kenny Aff. ¶ 24, at 5. Vocasek arrived shortly thereafter. At that point, the Smiths were placed in the back of his car and transported to the mobile-command center. See M. Smith Depo. at 34:18-25, 35:20-22; Vocasek Aff. ¶ 5, at 2. After five or ten minutes, still handcuffed and in the back of the police car, a blonde, female officer approached and questioned M. Smith. See id M. Smith remained handcuffed during questioning. See id. at 36:5-7. After questioning, M. Smith was placed in a police car with N. Smith and L. Smith. See id. at 36:10-13. The Smiths allege that the three of them remained in the back of the vehicle for approximately thirty to forty-five minutes. The Defendants argue that, based on the timing of other events, the Smiths were not in the back of the police car for more than eighteen minutes. See Response at 9. The parties also disagree whether the Smiths were handcuffed during their entire stay at the command post. See Plaintiffs’ Motion at 9-10; Defendants’ Response at 9-10. The only evidence cited, however, indicates that Kenny told the officers to remove the Smiths’ handcuffs once they were at the command post. See Kenny Aff. ¶ 25, at 5. The cited documents do not establish that any officer removed the cuffs. Because Kenny was in command at this time, however, the Court will infer that an officer followed his orders when and if appropriate to deciding these motions for summary judgment. The Defendants allege that Kenny then explained to L. Smith that the Smiths were extracted from their home because the police were looking for Lollis and were concerned that he may be inside her home. See Kenny Aff. ¶26, at 5. The Smiths also disagree with this allegation, asserting that they were never told why they were extracted from their home or detained. See L. Smith Depo. at 67:19-25.

Kenny ordered that Vocasek try to obtain from L. Smith permission to search the Smith residence. See Kenny Aff. ¶ 26, at 5. So, after L. Smith was detained and moved to the command center, officers read her Miranda rights and presented her with permission-to-search form that would allow the officers to search the house. See L. Smith Depo. at 55:22-25, 56:10-12, 57:25-58:2; Vocasek Depo. at 10:22-11:1; Kenny Aff. ¶26, at 5. The circumstances of this encounter are strongly disputed. The Defendants assert that the Smiths were uncuffed and that Vocasek was only advised that Kenny “would like [the Smiths] to sign a permission to search so that [the officers] [could] go in and take a look,” and that Vocasek volunteered to do so. Vocasek Depo. at 9:23-25. The Smiths assert that, when presented with the permission-to-search, L. Smith “felt ... highly intimidat[ed], ... with her son still handcuffed in the back of a police car,” and that she “determined to do whatever the police told her to do” “[b]ecause she felt very threatened under the circumstances.” Plaintiffs’ Motion at 10 (citing L. Smith Depo. at 55:22-25, 56:10-12, 57:25-60:4). The Defendants insist that L. Smith stated she understood what was being read to her and that Vocasek informed her that she could refuse to sign the form if she chose. See L. Smith Depo. at 57:25-58:4; Vocasek Aff. ¶¶ 8-11, at 2. L. Smith ultimately signed the permission-to-search form, and Vocasek then placed her and M. Smith in a police car— in the back seat, such that the Smiths could not exit the vehicle — and transported them back to a position near their home. See L. Smith Depo. at 63:18-64:2; Vocasek Depo. at 14:22-15:5.

The permission-to-search form states that the reader “understand^] that [he or she] may accompany the officers during this search, and that [he or she] may rescind the Permission to Search at any time.” Permission to Search at 1, filed July 6, 2009 (Doc. 47-5, p. 5). The Smiths were not allowed to accompany the officers on the search; instead, “to protect them from potential harm,” Vocasek Aff. ¶ 14, at 3, they were allowed to stand “a house or two south of their house,” McDonnell Depo. at 12:20-13:4, while the search took place.

Approximately six officers, including Vocasek, Napoleone, and Kenny, entered the Smiths’ home. See Vocasek Depo. at 17:18-19. According to the Smiths, the search lasted ten to fifteen minutes, after which the Smiths were allowed to enter the home accompanied by another officer. See L. Smith Depo. at 66:22-67:15; Napoleone Aff. ¶ 23, at 5. Kenny was among the entering officers, but he did not move beyond the entry area or join in the search. See Napoleone Aff. ¶ 20, at 4; Kenny Aff. ¶ 28, at 6; Vocasek Aff. ¶¶ 15-17, at 3-4. The Defendants contend that the search took closer to six minutes. See Vocasek Aff. ¶ 17, at 4; Kenny Aff. ¶29, at 6. Following the search of the family home, the Smiths were released from police custody without any charges. In the end, the police did not locate Lollis. See Napoleone Aff. ¶ 21, at 4.

PROCEDURAL BACKGROUND

On August 15, 2008, L. Smith, M. Smith, and N. Smith filed a five-count complaint in the United States District Court for the District of New Mexico, in which they bring civil-rights and New Mexico state- . tort claims against Defendants Kenny, Friedfertig, Kukowski, McDonnell, Napoleone, and Vocasek, all of whom are officers in the Albuquerque Police Department. See Complaint at 1, filed August 15, 2008 (Doc. I). In the Complaint, Count I accuses the Defendants of unlawfully extracting L. Smith and M. Smith from their home in violation of the Fourth and Fourteenth Amendments. See Complaint ¶¶ 88-41, at 6-7. Count II accuses the Defendants of unlawful arrest in violation of the Fourth and Fourteenth Amendments. See id. ¶¶ 42-45, at 7-8. In Count III, the Smiths accuse the Defendants of using excessive force, also in violation of the Fourth and Fourteenth Amendments. See id. ¶¶ 46^19, at 8. They allege in Count IV that the Defendants engaged in an unreasonable search, also in violation of the Fourth and Fourteenth Amendments. See id. ¶¶ 50-54, at 8-9. Finally, Count V asserts various state-law claims, including assault, battery, false arrest and false imprisonment. See id. ¶¶ 55-57, at 9.

On November 3, 2008, Kukowski individually answered and denied being present at 1704 Cardenas on the night in question, and further asserted five affirmative defenses. See Defendant Cassandra Kukowski’s Answer to Plaintiffs’ Complaint, filed November 3, 2008 (Doc. 12). That same day, the remaining Defendants likewise answered the Smiths’ Complaint, generally denying the allegations and asserted several affirmative defenses. See Defendants’ Answer to Plaintiffs’ Complaint, filed November 3, 2008 (Doc. 13). On February 27, 2009, Kukowski moved for summary judgment on grounds of qualified immunity. See Defendant Cassandra Kukowski’s Motion for Summary Judgment at 1, filed February 27, 2009 (Doc. 16). The Court largely denied that motion on July 21, 2009, because it found that she had not established her defense of qualified immunity as a matter of law. See Memorandum Opinion and Order at 41, filed July 21, 2009 (Doc. 52)(“First, there is a genuine issue of material fact regarding whether Kukowski failed to intervene in an illegal seizure of Nathan Smith. The factual dispute that Nathan Smith’s evidence has raised precludes summary judgment. Second, there is evidence that Kukowski seized Matthew and Linda Smith in violation of clearly established constitutional rights.”).

The Smiths move the Court, pursuant to rule 56 of the Federal Rules of Civil Procedure, for summary judgment as to all Defendants. See Plaintiffs’ Motion at 1. Kenny, McDonnell, Napoleone, Vocasek, and Kukowski cross-move for summary judgment, asserting qualified immunity and asking that the Court dismiss the Smiths’ complaint. See Defendants’ Motion at 1. Additionally, Kukowski moves for summary judgment individually on M. Smith’s exeessive-use-of-force claim against her. See Defendant Cassandra Kukowski’s Motion for Summary Judgment to Dismiss Plaintiffs Linda and Matthew Smith’s Excessive Use of Force Claims at 1, filed September 18, 2009 (Doc. 61).

A. PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT.

In their motion, the Smiths argue that Kenny and McDonnell unlawfully seized N. Smith and his property, and that the seizure was in violation of a clearly established right. More specifically, they assert that, when McDonnell turned on his police lights and pulled over N. Smith, that was an unlawful detention, and that Kenny is likewise culpable because he ordered McDonnell to pull over N. Smith’s vehicle. See Plaintiffs’ Motion at 13, 14. They further argue that McDonnell pulling over N. Smith interfered with N. Smith’s possessory interest in his vehicle, and that McDonnell interfered with N. Smith’s possessory interest in his vehicle and telephone by taking the telephone and keys and placing them on the top of the car, and, in taking those items, further impressed upon N. Smith that he was not free to leave the encounter. See id. Furthermore, it is undisputed that McDonnell placed N. Smith in the back of a police car and transported him to the command center. See id. at 14. The Smiths argue this encounter constitutes a seizure of N. Smith’s person, and that neither McDonnell nor Kenny, the officer who instructed McDonnell to pull over and apprehend N. Smith, had probable cause for this arrest. See id. They assert that this encounter violated clearly established constitutional rights of which a reasonable officer would have known. See id. The Defendants respond that N. Smith was seized, but that his seizure was justified as a stop based on reasonable suspicion. See Defendants’ Response at 16. They assert that there was no “meaningful interference” with N. Smith’s property rights, however, and so no seizure of his property occurred. See id. Finally, they argue that, if the Defendants seized N. Smith’s property, it was justified as a reasonable measure to ensure officer safety and secure Lollis’ capture. See id. at 16-17.

The Smiths next assert that Kukowski unlawfully seized them in their home. See Plaintiffs’ Motion at 15-19. They argue that the officers did not have a warrant, probable cause, nor any exigent circumstances to justify the arrest. See id. They argue that Kukowski’s use of a telephone to communicate does not change the fact that Kukowski asserted her authority as a police officer or that the Smiths submitted to that assertion of authority. See id. at 17-18. The Defendants argue that all Kukowski did was ask that L. Smith and M. Smith come outside, and that this request is not the kind of showing of authority that can result in a seizure. See Defendants’ Response at 14-15. They also argue that, even if Kukowski seized M. Smith, she could not have seized L. Smith because she did not speak to L. Smith. See id. at 15. Finally, they argue that Kukowski did not seize M. Smith by her showing of authority because M. Smith initially believed that Kukowski was just some “cute sounding girl.” Id. at 15-16.

Third, the Smiths argue that, although the force used by the police was commensurate with a reasonable arrest, the arrest was unlawful, and so the level of force used was excessive. See Plaintiffs’ Motion at 21-22. Even if the Court finds that an investigatory detention was warranted based on what the police knew, they assert, the level of force was unreasonable for such a detention. See id. Both L. Smith and M. Smith were ordered to put their hands up, were physically seized, were forced to their knees, and were handcuffed. See id. at 22. They argue that the law on these issues was clearly established when the events occurred and that a reasonable officer would have known that the level of force was unreasonable under the circumstances. See id. at 23. The Defendants argue that, in affecting a detention, there is no difference between the standard of reasonable force in an investigatory detention and an arrest; rather, determining whether the force used was excessive must be made based on the facts and circumstances known to the officer at the time of the detention. See Defendants’ Response at 18-20. They assert that, in the context of attempting to apprehend a murder suspect, the amount of force used was justified to ensure officer safety and to apprehend Lollis. See id. at 20.

Next, the Smiths argue that Vocasek and Napoleone unlawfully entered the Smiths’ home, without a warrant. See Plaintiffs’ Motion at 23. While they concede that Vocasek received a permission-to-search waiver from L. Smith, they assert that she did not voluntarily sign the waiver. See Plaintiffs’ Motion at 23. They next assert that no reasonable officer would believe that a consent form, taken under the circumstances, could give lawful permission to search. See id. at 24. They also argue that they were further detained while the officers executed the search, and that they were not permitted to observe. See id. They assert that the terms of the permission-to-search form allowed them to observe and to rescind permission, but that the Defendants did not intend to comply with those terms, and so the consent could not have been intelligently and voluntarily made. See Plaintiffs’ Reply to Defendants’ Response to Motion for Summary Judgment at 10, filed July 29, 2009 (Doc. 58). The Defendants argue that the search of the Smiths’ home was not unreasonable under the Fourth Amendment on two bases: there were exigent circumstances and the Smiths consented to the search. See Defendants’ Motion at 23. They contend that L. Smith’s consent was valid under the circumstances. See id. at 24. They then assert that “officer safety issues” arose when N. Smith came and went from the Smiths’ residence while the officers were setting up the perimeter, and that created the exigency permitting a warrantless entry into the Smiths’ residence. See id. at 24-25. The Defendants imply that the danger of the situation warranted barring the Smiths from joining the officers’ search, notwithstanding the language of the permission-to-search form.

Finally, the Smiths argue that Kenny should be liable, as a supervisor, for all the officers’ conduct. See Plaintiffs’ Motion at 25-26. The Defendants argue that the Smiths’ supervisory-liability claim against Kenny is new, and that the Court has no jurisdiction over it because it was not in the Joint Status Report. See Defendants’ Response at 23. They insist that government officials cannot be liable under a theory of respondeat superior, and that Kenny’s conduct was not unlawful in and of itself because he was acting to ensure the Smiths’ safety while executing an arrest warrant for a dangerous fugitive. See id. at 23-24. In their Reply, the Smiths clarify that Kenny’s liability is not vicarious, but direct, and that they referred to his liability as “supervisory liability” merely because Kenny was the supervising officer and yet is nevertheless liable. Reply at 11-12.

B. THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT.

The Defendants’ motion for summary judgment is aimed almost entirely at then-assertion of the defense of qualified immunity. See Defendants’ Motion at 2. First, they take issue with the idea that all of the Smiths’ claims are asserted against all of the Defendants. They argue that only certain of the Defendants were present at or took part in each of the events giving rise to the Smiths’ claims, and that they cannot be held liable for one another’s acts. See Defendants’ Motion at 12. In response, the Smiths argue that Kukowski was affirmatively linked to each of the constitutional claims alleged in Counts I through IV of their Complaint. See Plaintiffs’ Response at 13-14. They concede, however, that Vocasek and Napoleone played no part in the constitutional violations that N. Smith alleged, and that the Court could rightfully dismiss N. Smith’s claims as against those Defendants. See id. at 13 (“[T]he Court may rightfully deny Counts I-IV as between Plaintiff Nathan Smith and Defendant Napoleone, and as between Plaintiff Nathan Smith and Defendant Vocasek, as a matter of law.”). The Court will accept this concession, and will dismiss Counts I, II, III, and IV as between N. Smith and officers Napoleone and Vocasek.

Second, the Defendants argue that none of the Smiths were unreasonably seized. They assert that each seizure was based on reasonable suspicion, and was for a reasonable period of time given the circumstances and the risk to the officers’ safety. See Defendants’ Motion at 18-20. They argue that handcuffing, under these circumstances, was reasonable to ensure the officers’ safety. See id. at 20-21. Finally, they contend that the detention, based on reasonable suspicion, did not blossom into an arrest — thereby requiring probable cause — simply because they were for prolonged periods of time. See id. at 21-22. The Smiths, however, insist that the Defendants’ argument essentially concedes that (i) there was no search warrant; (ii) there was no probable cause; and (iii) that each of the Plaintiffs were, at some point, “seized.” Plaintiffs’ Response at 13-14. They assert that these concessions amount to an admission that the Defendants violated M. Smith’s and L. Smith’s constitutional rights because a seizure within a person’s home always requires probable cause. See id. at 14 (citing Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). They also assert that, if the Court finds that N. Smith was at any time arrested — rather than merely placed in an investigatory detention — that will also establish a constitutional violation, because a full custodial arrest always requires probable cause. See Defendants’ Motion at 14. The Smiths argue that N. Smith’s detention was clearly not an investigatory detention, because the detention was not brief, N. Smith was placed in handcuffs, and he was transported to another location. See id. at 14-15. The Smiths further attack the Defendants’ assertion that the Smiths were placed in protective detention and argue that the concept of protective detention is inapplicable to the facts of this case. See id. at 16-17. They assert that, because the Defendants were never in any danger, because they remained in control of the situation, and because there was no arrest of the intended suspect, there was no need for a protective detention. See id. at 16-21.

Third, the Defendants argue that the Court must dismiss the Smiths’ excessive-force claim because, if the Smiths were lawfully detained, the amount of force used was reasonable, and if the Smiths were unlawfully detained, the damages from their excessive force claim will be subsumed into their claim for unlawful arrest. See Defendants’ Motion at 22-23. They assert, therefore, that the claim will not result in damages regardless whether the detention is ultimately held to be unlawful. See id. at 23. The Smiths disagree, arguing that the claim should survive in case the Court finds that the officers had reasonable suspicion, though not probable cause, to detain one or more of the Smiths. See Plaintiffs’ Response at 23-24. They argue that the amount of force used was reasonable to affect an arrest, but unreasonable to affect an investigatory detention; therefore, if the Court finds reasonable suspicion but not probable cause, the amount of force used was excessive. See id. The Smiths conclude by arguing that no reasonable officer would have believed that L. Smith’s permission-to-search form was valid under the circumstances, nor that the arrival and departure of N. Smith from the residence created an exigency, and therefore the officers are not entitled to qualified immunity. See id. at 24-25.

In addition, the Defendants argue that the New Mexico Tort Claims Act does not waive the officers’ sovereign immunity from suit because their actions were lawful. See Defendants’ Motion at 25-26. To this assertion, the Smiths argue that the Court should not dismiss these claims because neither party has adequately briefed the New Mexico Tort Claims issues, and many legal and factual issues must be resolved before disposing of them. See id. at 25.

C. KUKOWSKI’S MOTION FOR SUMMARY JUDGMENT.

Kukowski’s motion for summary judgment asks the Court to assume, for the sake of this motion only, that an unlawful arrest of L. Smith and M. Smith occurred, and, based on that assumption and the undisputed facts in evidence, asks for the Court to grant summary judgment in favor of Kukowski on L. Smith’s and M. Smith’s excessive-use-of-force claims. See Kukowski Motion at 6-8. The Smiths attack this motion aggressively, essentially accusing Kukowski of trying to concede a fact for the purpose of this motion, where it will be beneficial to Kukowski, only to argue against that position later. See Plaintiffs’ Response to Kukowski’s Motion at 3-4. They ask the Court either to accept Kukowski’s concession regarding unlawful arrest for all purposes or to allow Kukowski to withdraw her motion and sanction her under rule 11 of the Federal Rules of Civil Procedure. See Plaintiffs’ Response to Kukowski’s Motion at 4-6.

D. THE PARTIES AGREED IN THE HEARING THAT THE COURT COULD DECIDE SOME ISSUES AS A MATTER OF LAW.

The Court held a hearing on October 28, 2009. At the hearing, the parties largely reiterated the arguments of their brief, but most appeared to agree that many of the facts in the case are undisputed and that the Court can decide many of the issues as a matter of law. See Transcript of Hearing at 5:17-6:23 (taken October 28, 2009)(Kennedy)(“Hearing Tr.”);' id. at 7:2-25 (Griffin); id. at 8:25-9:6 (Griffin). Attorney Minerva Camp argued for Kukowski and seemed to assert that the facts had changed since the Court issued its July 24, 2009 Memorandum Opinion and Order, 678 F.Supp.2d 1093, 2009 WL 2431949 (D.N.M. 2009). She thus insisted that the Court should not find as a matter of law that Kukowski seized L. Smith and M. Smith with her October 23, 2007 telephone call, as the Court implied that it might. See Hearing Tr. at 32:24-33:15; Memorandum Opinion and Order at 38 n. 3, 678 F.Supp.2d at 1121-22 n. 3 (Doc. 54).

The Court discussed the Defendants’ argument of exigent circumstances with Stephanie Griffin, attorney for Kenny, Vocasek, McDonnell, and Napoleone. Ms. Griffin conceded that, at the time of these events, the Defendants did not know that Lollis was in the Smiths’ home. See Hearing Tr. at 14:20-21 (Griffin). Further, she clarified that the exigent circumstance to which the Defendants refer was the arrival and departure of N. Smith at the 1704 Cardenas house. See id. at 44:14-20 (Griffin). The concern was that the officers “d[id]n’t know if [N. Smith] warned Raymond Lollis, they d[id]n’t know if he was somehow harboring or hiding Raymond Lollis, they d[id]n’t even know if Raymond Lollis at this point was in the vehicle.” Hearing Tr. at 15:21-25 (Griffin). Paul Kennedy, attorney for the Smiths, took issue with Ms. Griffin’s characterization of the situation, primarily her reference to the neighborhood and 1704 Cardenas as an “arrest scene.” See Hearing Tr. 53:6-54:6 (Kennedy). He insisted that the Defendants cannot argue that an exigent circumstance made their conduct permissible, because the only reason there was an exigent circumstance was that the scene was designated as an “arrest” scene, but neither the search nor the arrests would be permissible in the absence of an exigency. Id. In other words, he insists, the Defendants argue that the exigency justifying the arrest was that the arrest was going to occur.

LAW REGARDING MOTIONS FOR SUMMARY JUDGMENT

According to rule 56(c) of the Federal Rules of Civil Procedure, summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). The movant bears the initial burden of “showing] that there is an absence of evidence to support the non-moving party’s case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.l991)(internal quotation marks omitted). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant meets this burden, rule 56(e) requires the nonmoving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.l993)(“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.”)(internal quotes omitted)

The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Rule 56 provides that “an opposing party may not rely merely on allegations or denials in its own pleadings; rather, its response must — by affidavits or as otherwise provided in this rule' — set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e)(2). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his [or her] pleadings.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.l980)(“However, ‘once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.’ ”) (quoting Coleman v. Darden, 595 F.2d 533, 536 (10th Cir.1979)). Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat’l Ins. Co. v. Omer, No. 07-2123, 2008 WL 2309005, at *1 (D.Kan. June 2, 2008)(citing Fed.R.Civ.P. 56(e) and Argo v. Blue Cross and Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.’ ” Colony Nat’l Ins. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988)).

Genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505. A mere “scintilla” of evidence will not avoid summary judgment. See Vitkus v. Beatrice Co., 11 F.3d at 1539. Rather, there must be sufficient evidence on which the fact-finder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill and Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448, 14 Wall. 442, 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. “[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (internal citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the non-moving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

When reviewing a motion for summary judgment, the Court should keep in mind three principles. First, the Court’s role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. Second, the Court must resolve all reasonable inferences and doubts in favor of the non-moving party, and construe all evidence in the light most favorable to the non-moving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). Third, the Court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.

LAW REGARDING QUALIFIED IMMUNITY

As the Court has previously recognized in Holguin v. City of Albuquerque, No. CIV 05-0302 JB/RHS, 2006 WL 1228872, 2006 U.S. Dist. LEXIS 29489 (D.N.M. Mar. 1, 2006): “Qualified immunity recognizes the legitimate ‘need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.’ Harlow v. Fitzgerald, 457 U.S. 800, 807 [102 S.Ct. 2727, 73 L.Ed.2d 396] (1982)(quoting Butz v. Economou, 438 U.S. 478, 506 [98 S.Ct. 2894, 57 L.Ed.2d 895] (1978)).” 2006 WL 1228872, at *6, 2006 U.S. Dist. LEXIS 29489, at **15-16. Qualified immunity protects officials acting under color of state law from liability for discretionary functions, and from “the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.” Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). To balance the interests of the complaining individual, and the burden put upon the government official in defending such cases, “courts recognize the affirmative defense of qualified immunity, which protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Gross v. Pirtle, 245 F.3d 1151, 1155 (10th Cir.2001)(quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).

1. Rationale for Qualified-Immunity Doctrine.

Qualified immunity is judicially created and rooted in public policy. The fear of suit may have a chilling effect on official decision-making, seriously deterring officials from exercising judgment with the decisiveness important to their office. See Richardson v. McKnight, 521 U.S. 399, 407, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997) (describing the purposes of qualified immunity “as protecting government’s ability to perform its traditional functions by providing immunity where necessary to preserve the ability of government officials to serve the public good or to ensure that talented candidates were not deterred by the threat of damages suits from entering public service.”)(internal quotations omitted); Wyatt v. Cole, 504 U.S. 158, 165, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992)(detail-ing the public policy basis for the qualified immunity privilege). In Harlow v. Fitzgerald, the Supreme Court of the United States stated:

It cannot be disputed seriously that claims frequently run against the innocent as well as the guilty — at a cost not only to the defendant officials, but to society as a whole.... [Tjhere is the danger that fear of being sued will dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.

457 U.S. at 814, 102 S.Ct. 2727 (internal citations and quotations omitted).

The broad protection afforded by qualified immunity gives officials “a right, not merely to avoid ‘standing trial,’ but also to avoid the burdens of ‘such pretrial matters as discovery.’” Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1185 (10th Cir.2001) (quoting Behrens v. Pelletier, 516 U.S. 299, 308, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996)). When a defendant raises the affirmative defense of qualified immunity, “a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive.” Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part by Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 818-20, 172 L.Ed.2d 565 (2009). The qualified immunity privilege is “‘an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.’ ” Id. at 200-01, 121 S.Ct. 2151 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)).

2. Two-Part Test for Qualified Immunity.

Courts are required to apply a two-step analysis in deciding whether a party is entitled to qualified immunity. Until the Supreme Court’s decision in Pearson v. Callahan, the district courts had to take the prongs in order. Courts now have discretion to address the prongs in any order.

Once a defendant asserts the affirmative defense of qualified immunity, the burden shifts to the plaintiff to establish a violation of a constitutional or federal statutory right by the defendant, and that the constitutional right allegedly violated was clearly established at the time of the violation. See Gross v. Pirtle, 245 F.3d at 1155; Currier v. Doran, 242 F.3d 905, 917 (10th Cir.2001); Scull v. New Mexico, 236 F.3d 588, 595 (10th Cir.2000).

A court required to rule upon the qualified immunity issue must consider, then, this ... question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? In the course of determining whether a constitutional right was violated on the premise alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established. This is the process for the law’s elaboration from case to case....

Saucier v. Katz, 533 U.S. at 201, 121 S.Ct. 2151 (citations omitted). The plaintiff must demonstrate that the right alleged to have been violated was clearly established at the time of the defendant’s allegedly unlawful conduct. See Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1186; Gross v. Pirtle, 245 F.3d at 1156; Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir.1995). If the plaintiff fails to satisfy either part of this two-part inquiry, the court must grant the defendant qualified immunity. See Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1186; Gross v. Pirtle, 245 F.3d at 1156; Albright v. Rodriguez, 51 F.3d at 1535. “In short, although we will review the evidence in the light most favorable to the nonmoving party ... the record must clearly demonstrate the plaintiff has satisfied his heavy two-part burden; otherwise, the defendants are entitled to qualified immunity.” Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1186 (citing Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.2001)).

3. Clearly Established Law.

Qualified immunity shields state officials from liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. 2727. A clearly established right is generally defined as a right so thoroughly developed and consistently recognized under the law of the jurisdiction as to be “indisputable” and “unquestioned.” Zweibon v. Mitchell, 720 F.2d 162, 172-173 (D.C.Cir.1983), cert. denied, 469 U.S. 880, 105 S.Ct. 244, 83 L.Ed.2d 182 (1984). “Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Strepka v. Miller, 28 Fed.Appx. 823, 830 (10th Cir.2001)(citing Currier v. Doran, 242 F.3d at 923). See Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir.1992).

The plaintiffs burden to establish that the law is clearly established “must be undertaken in light of the case’s specific context, not as a broad proposition.” Saucier v. Katz, 533 U.S. at 201, 121 S.Ct. 2151. “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation.” Id. at 202, 121 S.Ct. 2151. The Supreme Court has observed, however, that it is generally not necessary to find a controlling decision declaring the “very action in question ... unlawful.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Nonetheless, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. at 635, 107 S.Ct. 3034.

The United States Court of Appeals for the Tenth Circuit has held that, to carry the burden of identifying a clearly established right, the plaintiff “must demonstrate a substantial correspondence between the conduct in question and prior law allegedly establishing that the defendant’s actions were clearly prohibited.” Trotter v. Regents of the University of New Mexico, 219 F.3d 1179, 1184 (10th Cir.2000)(quoting Hannula v. City of Lakewood, 907 F.2d 129, 131 (10th Cir.1990), abrogated on other grounds by Dixon v. Richer, 922 F.2d 1456, 1461 (10th Cir.1991)). “In determining whether the right was ‘clearly established,’ the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether ‘the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.’” Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1186 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). “This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Mimics, Inc. v. Village of Angel Fire, 394 F.3d 836, 842 (10th Cir.2005) (internal citations and quotations omitted). If a reasonable person could have believed that the actions were lawful, “defendants are entitled to dismissal before discovery.” Workman v. Jordan, 958 F.2d 332, 336 (10th Cir.1992). Moreover, that an official action may be in violation of an agency’s internal procedures does not, in itself, violate any clearly established constitutional right. See Herring v. Keenan, 218 F.3d 1171, 1180-81 (10th Cir.2000)(explaining “that the fact that an official discloses information in violation of his own internal procedures does not make the disclosure a violation of a clearly established constitutional right to privacy.”); Roska v. Peterson, 328 F.3d 1230, 1251 (10th Cir.2003)(“In considering the ‘objective legal reasonableness’ of the state officer’s actions, one relevant factor is whether the defendant relied on a state statute, regulation, or official policy that explicitly sanctioned the conduct in question.”).

4. Pearson v. Callahan.

The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified-immunity defense. In Saucier v. Katz, the Supreme Court held that the lower court need not decide the constitutional violation issue before it decides whether the violation was clearly established. In Pearson v. Callahan, the Supreme Court held that, “while the sequence set forth [in Saucier v. Katz ] is often appropriate, it should no longer be regarded as mandatory.” 129 S.Ct. at 818. Rather, lower courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand.” Id. The Supreme Court also noted that, while no longer mandatory, the protocol outlined in Saucier v. Katz would often be beneficial. See Pearson v. Callahan, 129 S.Ct. at 819.

While leaving the determination whether to adhere to the Saucier v. Katz sequence in the lower courts’ sound discretion, the Supreme Court mentioned various circumstances where such sequencing might be undesirable. For example, there are cases in which it is plain that a right is not clearly established, but less obvious whether such a right in fact exists. See Pearson v. Callahan, 129 S.Ct. at 819. Under such circumstances, it might be considered a waste of resources to engage in analysis under the first prong — whether a constitutional right was violated — when it is already obvious that, even if such a right existed, it was not clearly established. See id.

Another concern arises out of the fact that qualified immunity is usually raised at the pleading stage. The Supreme Court in Pearson v. Callahan observed that the “two-step” inquiry can be an uncomfortable exercise where “the answer [to] whether there was a violation may depend on a kaleidoscope of facts not yet fully developed.” Id. (brackets in original)(internal quotation marks and citation omitted). Under such circumstances, it may be more advantageous to analyze whether the asserted right was clearly established rather than reaching the merits. See id.

Adherence to Saucier v. Katz also poses the potential to lead to bad decision-making. For example, in some cases that the district courts encounter, “the briefing of constitutional questions is woefully inadequate,” and “constitutional questions may be prematurely and incorrectly decided in cases where they are not well presented.” Pearso