Full opinion text
MEMORANDUM OPINION AND ORDER JAMES O. BROWNING, District Judge. THIS MATTER comes before the Court on: (i) the City Defendants’ Motion for Partial Summary Judgment No. I: Motion by Officers Rahn and Ahlm for Qualified Immunity on Excessive Force and Failure to Intervene Claims in Counts I and II, filed March 31, 2011 (Doc. 50) (“Motion”); and (ii) the Motion to Strike Certain References in Plaintiffs’ Response to City Defendants’ Motion for Partial Summary Judgment No. I [Docket No. 55], filed April 22, 2011 (Doc. 62). The Court held a hearing on May 6, 2011. The primary issues are: (i) whether the Court should strike certain references in Plaintiff Juan Mata’s response because they are irrelevant and not in accord with the Court’s summary judgment procedures; (ii) whether Defendant Tyler Rahn used excessive force when he pointed his police revolver at Plaintiff Juan Mata and J.A.M.; and (ii) whether Defendant John Ahlm violated Mata’s and J.A.M.’s constitutional rights by not intervening to prevent Rahn from violating Mata and J.A.M.’s constitutional rights. The Court will deny the motion to strike. The Court will not strike the references in Mata’s response, because this drastic remedy is generally disfavored, and the Court does not believe that it is necessary in this situation. The Court will grant in part and deny in part the motion for partial summary judgment that Rahn and Ahlm (together “the Officer Defendants”) filed. The Court finds that Rahn is entitled to summary judgment on Mata’s excessive force claim on G.M.’s behalf, but that he is not entitled to summary judgment on Mata’s excessive force claims on his own behalf and on J.A.M.’s behalf. Mata cannot show that Rahn’s conduct violated G.M.’s constitutional rights, because G.M. was not seized. The Court will thus grant summary judgment for Rahn against Mata’s excessive force claim on G.M.’s behalf on the grounds of qualified immunity. A reasonable jury could find, however, that Rahn’s conduct violated Mata’s and J.A.M.’s Fourth-Amendment rights. The Court finds that these rights were clearly established at the time of the alleged violation. Because a reasonable jury could find that Rahn’s conduct violated Mata’s and J.A.M.’s Fourth-Amendment Rights, Rahn is not entitled to judgment as a matter of law, and the Court will deny his request for summary judgment on Mata’s excessive force claims on his behalf and on J.A.M.’s behalf on the grounds of qualified immunity. The Court finds that Ahlm is entitled to qualified immunity on Mata’s failure-to-intervene claim on G.M.’s behalf, because Mata cannot show that Rahn violated G.M.’s constitutional rights, and establishing a constitutional violation is a necessary predicate to any claim that an officer failed to intervene. The Court further finds that Ahlm is not entitled to qualified immunity on Mata’s failure-to-intervene claims on his behalf and on J.A.M.’s behalf, because there is an issue of fact whether Ahlm had a realistic opportunity to intervene to prevent Rahn’s alleged excessive use of force. FACTUAL BACKGROUND In his Response, Mata asserts certain facts regarding the history of Mata’s relationship with the Farmington Police Department (“FPD”). Although the Officer Defendants moved to strike these references, arguing that they were irrelevant and did not conform with the local rules on summary judgment procedure, the Court will not strike these references; instead, it will include the asserted facts that Mata has supported through references to the record as factual background and will address whether these facts are material in its analysis. Mata and several of his family members filed a civil-rights lawsuit on November 28, 2004 against the City of Farmington and several police officers, alleging that his civil rights were violated during a November 29, 2002 arrest in which he was pepper sprayed by an FPD officer; the matter was later settled for $75,000.00. See Mata v. Anderson, 685 F.Supp.2d 1223, 1236 (D.N.M.2010). Mata alleges that, after the case was filed, FPD officers routinely harassed and intimidated his family by following them around town, and by stopping in front of their home for no apparent reason and shining their spotlights on the windows. See Deposition of Juan Mata at 117:13-20, 119:8-11, 121:17-122:13, 127:15-23, 262:19-25, 277:1-21 (taken February 3 and 4, 2011), filed April 14, 2011 (Doc. 55-1). Mata publicly protested FPD Officer Mike Briseno; Mata stood in front of the police department, holding up a sign, and he signed a petition asking for an investigation of Briseno’s conduct. See Mata Depo. at 19:17-21:6. Mata alleges that the FPD negatively reacted to a series of articles that the Daily Times in Farmington ran about his family’s lawsuit and that, after the articles ran, the police intensified their actions of following him, spotlighting him, and driving by his house. See Mata Depo. at 363:22-364:10. Mata alleges that FPD police officers attempted to plant methamphetamine at his residence. See Mata Depo. at 63:8-64:17. Mata further alleges that, on April 2, 2007, a police officer stopped him and gave him a warning, allegedly because the officer could not See that his license plate lights were on, but a video of the incident shows that his license plate lights worked. See Mata Depo. at 130:6-132:18. On June 16, 2008, at approximately 8:40 p.m., Ahlm, a FPD officer, and FPD Corporal Kee, who was traveling in Ahlm’s squad car, stopped a dark blue sports utility vehicle (“SUV”) on the street in front of Mata’s residence at 408 Sycamore in Farmington. See, e.g., Complaint for Civil Rights Violations ¶¶ 31-32, at 7, filed April 15, 2010 (Doc. 1); Deposition of John Ahlm at 39:7-25, 41:16-21 (taken February 24, 2011), filed March 31, 2011 (Doc. 50-2); Dashcam Video from Officer Ahlm’s Squad Car, FPD Unit 9853 at 20:38:36, filed March 31, 2011 (Doc. 53, Ex. C) (“Unit 9853 Dashcam”); Motion ¶ 1, at 7-8 (setting forth this fact); Plaintiffs’ Response to City Defendants’ Motion for Partial Summary Judgment No. I: Motion by Officers Rahn and Ahlm for Qualified Immunity on Excessive Force and Failure to Intervene Claims in Counts I and II, at 4, filed April 14, 2011 (Doc. 55) (“Response”) (not controverting this fact). Ahlm advised the driver of the dark blue SUV, Valentin Araiza, that he had stopped him because the vehicle’s license plate was covered by a piece of plastic, obscuring the license plate’s numbers from view. See, e.g., Ahlm Depo. at 42:2-4; Unit 9853 Dashcam at 20:38:47-20:39:04; Motion ¶ 2, at 8 (setting forth this fact); Response at 4 (not controverting this fact). As Ahlm was trying to get Araiza’s license and registration, an individual who was watching the traffic stop started cursing at Ahlm and telling the officer to get off the property. See Ahlm Depo. at 42:22-43:17; Unit 9853 Dashcam at 20:39:52-20:42:32. Ahlm asked the individual to stay behind the gate to the property so that he could complete the paperwork for the traffic stop, but the individual continued to protest that the officer was on his property. See Unit 9853 Dashcam at 20:39:52-20:42:50. Within several minutes of pulling Araiza over, a number of individuals had gathered in the yard at 408 Sycamore, and others were walking in and out of the yard and onto the sidewalk just in front of the traffic stop or approaching the scene of the traffic stop from the side. See Ahlm Depo. at 42:22-43:23; Unit 9853 Dashcam at 20:42:32-20:43:29. Ahlm grew concerned about the number of individuals who were walking in and out of the traffic stop area — including some small children, about the level of incivility between one individual and the officers, and about his ability to exercise control over the traffic stop under these circumstances. See Ahlm Depo. at 43:15-23, 45:1-7, 48:1-16, 52:1-4; Unit 9853 Dash-cam at 20:39:25-20:44:03; Dashcam Video from Officer Rahn’s Squad Car, FPD Unit 9844 at 20:43:23, filed March 31, 2011 (Doc. 53, Ex. D) (“Unit 9844 Dasheam”); Deposition of Tyler Rahn at 28:10-13, 29:1-4, 33:13-23 (taken February 23, 2011), filed March 31, 2011 (Doc. 50-3). The officers radioed for police backup to help manage the individuals who had gathered in the traffic-stop area. See Rahn Depo. at 28:10-13, 29:1-4. Officer Jeffrey Browning and Rahn arrived on the scene approximately five minutes after Ahlm pulled over Araiza. See Unit 9844 Dasheam at 20:43:30; Dashcam Video From Officer Browning’s squad car, FPD Unit 10029 at 20:43:18, filed March 31, 2011 (Doc. 53, Ex. F) (“Unit 10029 Dasheam”). As Ahlm began to brief Rahn and Browning, one of the individuals in the crowd started to interrupt and protest anew that it was his property. See Unit 9844 Dashcam at 20:43:30-57. At that point, Kee advised Ahlm that he was going to have Araiza back up so that Mata could get out of his driveway; Mata then began to back out his gold SUV from the driveway. See Unit 9844 Dashcam at 20:43:56-20:44:14; Unit 10029 Dashcam at 20:43:56-20:44:14; Mata Videotape at 8:41:17-30. As Mata continued to back his vehicle out of the driveway, the individual who had earlier been challenging Ahlm continued to yell at the officers, insisting that they were on private property and referring to them with profanities. See Unit 9844 Dashcam at 20:44:09-39. As Mata began to pull slowly forward in front of Araiza’s vehicle, Kee called out “Put your seat belt on,” twice; Mata continued to slowly move his vehicle forward. Unit 9853 Dashcam at 20:44:40-50; Unit 9844 Dashcam at 20:44:43-50. Kee and Ahlm ordered Mata to stop his vehicle as they walked up to the drivers’ side window of Mata’s vehicle. See Unit 9853 Dashcam at 20:44:46-55; Unit 9844 Dashcam 20:44:36-55. Mata yelled: “What? I’m gonna put it on man. What the hell?” Unit 9853 Dashcam 20:44:50-57. Ahlm warned him to put the seatbelt on immediately or he would write him a ticket, and Mata responded: “Write me a ticket then ... I’m not even fucking driving;” Mata and Ahlm then engaged in an acrimonious dispute whether Mata was driving and whether his vehicle was moving. See Unit 9853 Dashcam at 20:44:50-20:45:09; Unit 9844 Dashcam at 20:44:50-20:45:09. Ahlm told Mata he was going to write him a ticket and told Mata that he was not free leave, saying: “Don’t leave, you’re not free to leave, sir.” Unit 9853 Dashcam at 20:45:05-10. As Ahlm had his back turned and was heading over to the squad car, Mata responded, saying “Well, I need to go,” and proceeded to slowly pull forward. Unit 9853 Dashcam at 20:45:08-15; Unit 9844 Dashcam at 20:45:08-11; Unit 10029 Dashcam at 20:45:08-11. The three police vehicles parked on the street outside Mata’s residence confined Mata’s ability to move his vehicle. See Map of Position of Vehicles, filed April 14, 2011 (Doc. 55-2). Rahn, who was standing several feet to the side of Mata’s front wheel, moved back a step as Kee yelled at Mata to “Stop.” Unit 9853 Dashcam at 20:45:10-15; Unit 9844 Dashcam at 20:45:10-15. See Deposition of Tyler Rahn at 71:1-15 (taken February 23, 2011), filed March 31, 2011 (Doc. 50-3). Mata did not obey the order to stop, and continued to slowly move his vehicle forward several feet; as Mata moved his vehicle, Rahn reached back and removed his firearm from the holster, and trained it on Mata, ordering him to stop. See Unit 9853 Dashcam at 20:45:10-15; Unit 9844 Dashcam at 20:45:10-15. As Rahn removed his firearm from the holster, Ahlm was approximately fifteen feet away standing by his squad car, but he was facing Mata’s SUV. See Ahlm Depo. at 78:7-16, 99:11-21, 100:1-8; Unit 9844 Dashcam at 20:45:09-13; Unit 9853 Dashcam at 20:45:13 (showing Ahlm facing the SUV as Rahn is reaching to pull his firearm out of its holster). Once Ahlm heard Kee and Rahn order Mata to stop again, Ahlm moved in behind Rahn. See Ahlm Depo. at 99:17-21; Unit 9853 Dashcam at 20:45:10-18. As Ahlm approached Mata’s vehicle, Rahn’s body blocked Ahlm’s view of the driver’s side window of Mata’s vehide. See Unit 9853 Dashcam at 20:5:10-16. As Ahlm moved in behind Rahn, Kee crossed in front of Ahlm’s path to position himself to one side of Rahn. See Ahlm Depo. at 100:9-15; Unit 9853 Dashcam at 20:45:12-15. Videotape of the incident does not clearly show where Rahn’s firearm was trained; however, as Mata stopped his vehicle, the flashlight at the end of Rahn’s firearm can be seen shining on the lower portion of the driver’s side window. See Unit 9853 Dash-cam at 20:45:12-19. Although the videotape does not clearly show where Rahn had his firearm trained during this incident, Mata’s minor son, J.A.M., who was traveling in the front passenger seat of the vehicle at the time, may have been in the line of fire had Rahn fired his gun; J.A.M. testified that Rahn pointed the gun at his father, but that the gun was “sort of’ pointing at him as well in that — “if it would have shot my dad, it would have shot me, too.” Deposition of J.A.M. at 10:18-23, 11:10-18 (taken February 3, 2011), filed March 31, 2011 (Doc. 50-4). Mata’s mother, who was standing alongside the passenger side of the vehicle and facing in towards the interior of the vehicle at the time when Rahn pulled out his firearm, testified that Rahn did not point his firearm at Mata’s minor son, J.A.M. See Deposition of Gregoria Mata at 23:21-24:9 (taken February 2, 2011), filed March 31, 2011 (Doc. 50-5) (stating that the police pointed the gun only at Mata and that the officer did not point the gun at J.A.M.). Mata’s minor daughter, G.M. was not a passenger in Mata’s vehicle at the time of the incident; she was, however, standing in her front yard at the time. See Deposition of G.M. at 6:4-8, 10:16-21 (taken February 3, 2011), filed March 31, 2011 (Doc. 50-6); G. Mata Depo. at 18:21-19:2. Videotape from the scene shows that Mata’s front yard is bounded on the side that faces Sycamore Street by a fence with a hedge growing over it. See Unit 9844 Dashcam at 20:45:09. Videotape from the scene shows that Mata’s mother was standing alongside the front passenger-side door of Mata’s vehicle when Rahn pulled his firearm on Mata and that she turned forward to keep pace with the vehicle as it continued to move forward, and then turned back and leaned in to the front passenger-side window as the vehicle came to a stop. See Unit 9844 Dashcam at 20:45:11-20. Approximately eleven seconds elapsed from the time that Rahn pulled out his firearm and ordered Mata to stop until the time that he re-holstered the firearm, and Kee moved in to extract Mata from the car. See Unit 9853 Dashcam at 20:45:12-22. PROCEDURAL BACKGROUND On April 15, 2010, Mata filed his Complaint for Civil Rights Violations. See Doc. 1. In the Complaint, Mata alleges claims under 42 U.S.C. § 1983. In Count I, he alleges that Rahn unlawfully used excessive force in violation of the Fourth Amendment. In Count II, he alleges that Rahn’s fellow officers failed to take action to stop Rahn’s excessive use of force. In Count III, he asserts a claim for punitive damages. In Count IV, he asserts that the City of Farmington is liable, because the “acts and omissions in violation of Plaintiffs’ rights by the Defendant Rahn were perpetrated pursuant to the custom and policy of the City of Farmington,” and that the City of Farmington maintains an official policy of permitting its officers to engage in harassing behavior and excessive use of force or ignores such actions. Complaint ¶¶ 58-59, at 12-13. In Count V, he asserts that the City of Farmington is liable, because the “acts and omissions in violation of Plaintiffs’ rights by Defendant Rahn were perpetrated pursuant to the custom and policy of the City of Farming-ton,” and the City of Farmington failed to train or supervise Rahn regarding the appropriate handling of situations. Complaint ¶ 65, at 13-14. In Count VI, Mata alleges that the City of Farmington is liable for its failure to train and supervise with reference to the officers’ duty to intervene and stop the use of excessive force by a fellow officer. On March 31, 2011, Rahn and Ahlm filed the City Defendants’ Motion for Partial Summary Judgment No. I: Motion by Officers Rahn and Ahlm for Qualified Immunity on Excessive Force and Failure to Intervene Claims in Counts I and II. See Doc. 50. They argue that Rahn is entitled to qualified immunity on Count I and that Ahlm is entitled to qualified immunity on Count II. The Officer Defendants argue that the decision to display a firearm as a show of force at a traffic stop and the decision not to intervene in a fellow officer’s show of force are the sort of discretionary decisions that qualified immunity is designed to shield. Rahn argues that he is entitled to qualified immunity on Mata’s excessive force claims, because Mata fails to allege or show that his minor children were seized for purposes of a Fourth-Amendment excessive force claim, because Mata fails to show that Rahn’s display of force was so unreasonable and excessive as to constitute a violation of the Fourth Amendment, and because the clearly established weight of legal authority does not hold that Rahn’s show of force was unconstitutional. Ahlm argues that he is entitled to qualified immunity on Count II, because Mata has failed to show that Ahlm witnessed a constitutional violation, which is a necessary predicate to a failure to intervene claim, and because a videotape shows that Ahlm did not have a realistic opportunity to intervene. The Officer Defendants thus request that the Court dismiss the individual capacity claims against Rahn and Ahlm with prejudice. On April 14, 2011, Mata filed the Plaintiffs’ Response to City Defendants’ Motion for Partial Summary Judgment No. I: Motion by Officers Rahn and Ahlm for Qualified Immunity on Excessive Force and Failure to Intervene Claims in Counts I and II. See Doc. 55. Mata argues that his minor children were seized by the FPD officers as that term is used under the Fourth Amendment. He argues that Rahn used excessive force. He also argues that Rahn’s use of force was unconstitutional. Mata further argues that Ahlm is not entitled to qualified immunity and that he was obligated to intervene. On April 22, 2011, the Officer Defendants filed the Motion to Strike Certain References in Plaintiffs’ Response to City Defendants’ Motion for Partial Summary Judgment No. I [Docket No. 55]. See Doc. 62. They argue that Mata devotes six pages of his response to various encounters he had with officers of the FPD between 2002 through 2010. They argue that these encounters are not relevant. They argue that the Court has the inherent power to strike impertinent filings and to rein in abusive conduct. They thus ask the Court to strike all references to encounters between Mata and FPD officers that predate or postdate his June 16, 2008 traffic stop, and to strike Mata’s responses to paragraphs 16 to 19 of the Officer Defendants’ Motion to the asserted undisputed facts as they are irrelevant. On April 28, 2011, Rahn and Ahlm filed their Reply to Response to City Defendants’ Motion for Partial Summary Judgment No. I [Docket No. 50 ]. See Doc. 65. The Defendant Officers argue that Rahn did not subject J.A.M. and G.M. to a show of authority. They argue that Rahn’s show of force was not unreasonable. They further argue that Mata misapprehends the case law on the failure-to-intervene claims. At the hearing, the Court indicated that it was inclined to address the two motions in one Memorandum Opinion and Order, that it was inclined to not strike Mata’s allegations, and that it was inclined to make a determination whether the allegations were material in the body of its opinion. Mata’s counsel represented that he agreed with the Court’s inclination to not strike the allegations and to determine whether they are material in its analysis. Mata’s counsel represented that he did not want to file a written response to the Officer Defendants’ motion to strike; instead, he wished to stand on the record. At a pre-trial hearing on June 1, 2011, the Court informed Mata’s counsel that Mata had not submitted Exhibits 1 or 3 in support of his Response, and that he had not submitted portions of his deposition. Mata’s counsel informed the Court that he did not intend to file the exhibits or the excerpts of the deposition, and stated that the Court should rule on the record before it. LEGAL STANDARD FOR MOTIONS FOR SUMMARY JUDGMENT Rule 56(c) states that summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). The movant bears the initial burden of “showing] that there is an absence of evidence to support the nonmoving party’s case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991) (internal quotation marks omitted). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record], together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.”) (internal quotation marks omitted). Once the movant meets this burden, rule 56(e) requires the non-moving 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.1993) (“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 quotation marks 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 Secs., 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 pleading; 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. at 256, 106 S.Ct. 2505. 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.1980) (“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.’ ” (citation omitted)). 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 & 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)). To survive summary judgment, 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. 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 non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improv. 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 Qualified immunity recognizes the “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). Qualified immunity “protects federal and state officials from liability for discretionary functions, and from ‘the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.’ ” Roybal v. City of Albuquerque, No. Civ. 08-0181, 2009 WL 1329834, at *10 (D.N.M. Apr. 28, 2009) (Browning, J.) (quoting Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)). Issues of qualified immunity are best resolved at the “earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)). Qualified immunity shields government officials from liability where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 129 S.Ct. at 815 (quoting Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. 2727). When a defendant asserts qualified immunity at summary judgment, the responsibility shifts to the plaintiff to meet a “heavy two-part burden.” Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.2001). The plaintiff must demonstrate on the facts alleged: (i) that the defendant’s actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged unlawful activity. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.2009); Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir.2007). In assessing wheth er the right was clearly established, the court asks whether the right was sufficiently clear that a reasonable officer in the defendant’s shoes would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d at 1327. In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part by Pearson v. Callahan, the Supreme Court of the United States held that the court must decide whether there was a constitutional violation first before it decides whether the law is clearly established. See 533 U.S. at 200-01, 121 S.Ct. 2151. Courts are no longer required to analyze the issues in that order. See Pearson v. Callahan, 129 S.Ct. at 818. “If, and only if, the plaintiff meets this two-part test does a defendant then bear the traditional burden of the movant for summary judgment — showing ‘that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law.’ ” Nelson v. McMullen, 207 F.3d 1202, 1206 (10th Cir.2000). 1. Factual Disputes in the Qualified-Immunity Analysis. In determining whether the plaintiff has met his or her burden of establishing a constitutional violation that was clearly established, the court construes the facts in the light most favorable to the plaintiff as the non-moving party. See Scott v. Harris, 550 U.S. 372, 378-80, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Riggins v. Goodman, 572 F.3d at 1107 (noting that the United States Court of Appeals for the Tenth Circuit “accept[s] the facts and the plaintiff alleges them”). In Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir.2009), the Tenth Circuit explained: [BJecause at summary judgment we are beyond the pleading phase of the litigation, a plaintiffs version of the facts must find support in the record: more specifically, “[a]s with any motion for summary judgment, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts[.]” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir.2008) (quoting Scott [v. Harris ], 550 U.S. at 380, 127 S.Ct. 1769); see also Estate of Larsen ex. rel Sturdivan v. Murr, 511 F.3d 1255, 1258 (10th Cir. 2008). Thomson v. Salt Lake County, 584 F.3d at 1312. “The Tenth Circuit, in Rhoads v. Miller, 352 Fed.Appx. 289 (10th Cir.2009), explained that the blatant contradictions of the record must be supported by more than other witnesses’ testimony!!]” Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M.2010) (Browning, J.). In evaluating a motion for summary judgment based on qualified immunity, we take the facts “in the light most favorable to the party asserting the injury.” Scott v. Harris, 550 U.S. 372, 377, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). “[T]his usually means adopting ... the plaintiffs version of the facts,” id. at 378, 127 S.Ct. 1769, unless that version “is so utterly discredited by the record that no reasonable jury could have believed him,” id. at 380, 127 S.Ct. 1769. In Scott, the plaintiffs testimony was discredited by a videotape that completely contradicted his version of the events. 550 U.S. at 379, 127 S.Ct. 1769. Here, there is no videotape or similar evidence in the record to blatantly contradict Mr. Rhoads’ testimony. There is only other witnesses’ testimony to oppose his version of the facts, and our judicial system leaves credibility determinations to the jury. And given the undisputed fact of injury, Mr. Rhoads’ alcoholism and memory problems go to the weight of his testimony, not its ad missibility. ... Mr. Rhoads alleges that his injuries resulted from a beating rendered without resistence or provocation. If believed by the jury, the events he describes are sufficient to support a claim of violation of clearly established law under Graham v. Connor, 490 U.S. 386, 395-96, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), and this court’s precedent. Rhoads v. Miller, 352 Fed.Appx. at 291-92 (internal citations and quotations omitted). See Lymon v. Aramark Corp., 728 F.Supp.2d at 1249-50 (quoting Rhoads v. Miller, 352 Fed.Appx. at 291-92). In a concurring opinion in Thomson v. Salt Lake County, Judge Holmes stated that the court must focus first on the legal question of qualified immunity and “determine whether plaintiffs factual allegations are sufficiently grounded in the record such that they may permissibly comprise the universe of facts that will serve as the foundation for answering the legal question before the court” before inquiring into whether there are genuine issues of material fact for resolution by the jury. 584 F.3d at 1326-27 (Holmes, J. concurring) (citing Goddard v. Urrea, 847 F.2d 765, 770 (11th Cir.1988) (Johnson, J., dissenting) (observing that, even if factual disputes exist, “these disputes are irrelevant to the qualified immunity analysis because that analysis assumes the validity of the plaintiffs’ facts.”)). 2. Clearly Established Rights. 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 905, 923 (10th Cir.2001)). See Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir.1992). “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 1179, 1186 (10th Cir.2001) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). The Supreme Court has observed that it is generally not necessary to fínd a controlling decision declaring the “very action in question ... unlawful.” Anderson v. Creighton, 483 U.S. at 640, 107 S.Ct. 3034. However, “[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 Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified-immunity defense. 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. Once the plaintiff has established the inference that the defendant’s conduct violated a clearly established constitutional right, a qualified immunity defense generally fails. See Cannon v. City and County of Denver, 998 F.2d 867, 870-71 (10th Cir.1993). LAW REGARDING EXCESSIVE FORCE When an officer moves for qualified immunity on an excessive-force claim, “a plaintiff is required to show that the force used was impermissible (a constitutional violation) and that objectively reasonable officers could not have thought the force constitutionally permissible (violates clearly established law).” Cortez v. McCauley, 478 F.3d 1108, 1128 (10th Cir. 2007). Courts analyze Fourth-Amendment excessive force claims “under the ‘objective reasonableness’ standard that governs other Fourth Amendment inquiries.” Cordova v. Aragon, 569 F.3d 1183, 1188 (10th Cir.2009). See Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (“[A]ll claims that law enforcement officers have used excessive force ... in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.”). The Tenth Circuit has explained: Reasonableness is evaluated under a totality of the circumstances approach which requires that we consider the following factors: the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. Weigel v. Broad, 544 F.3d 1143, 1151-52 (10th Cir.2008) (internal quotation marks and citations omitted). The court assesses “objective reasonableness based on whether the totality of the circumstances justified the use of force, and pay careful attention to the facts and circumstances of the particular case.” Estate of Larsen ex. rel Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th Cir.2008) (internal quotation marks omitted). See Cordova v. Aragon, 569 F.3d at 1188 (describing the reasonableness test as requiring a court to “slosh our way through the fact-bound morass of reasonableness” by “conducting [a] balancing act”) (internal quotation marks omitted). Additionally, “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. at 396, 109 S.Ct. 1865. ANALYSIS The Court will deny the Officer Defendants’ motion to strike. The Court will not strike the references in Mata’s response, because this drastic remedy is generally disfavored, and the Court does not believe that it is necessary in this situation. The Court will grant in part and deny in part the Officer Defendants’ motion for partial summary judgment. The Court finds that Rahn is entitled to qualified immunity on Mata’s excessive force claim on G.M.’s behalf, but that he is not entitled to qualified immunity on Mata’s excessive force claims on his own behalf and on J.A.M.’s behalf. Mata cannot show that Rahn’s conduct violated G.M.’s constitutional rights, because G.M. was not seized. The Court will thus grant summary judgment for Rahn against Mata’s excessive force claim on G.M.’s behalf on the grounds of qualified immunity. A reasonable jury could find, however, that Rahn’s conduct violated Mata’s and J.A.M.’s Fourth Amendment rights. The Court finds that these rights were clearly established at the time of the alleged violation. Because a reasonable jury could find that Rahn’s conduct violated Mata’s and J.A.M.’s Fourth-Amendment rights, Rahn is not entitled to judgment as a matter of law, and the Court will deny his request for summary judgment on Mata’s excessive force claims on his behalf and on J.A.M.’s behalf on the grounds of qualified immunity. The Court finds that Ahlm is entitled to qualified immunity on Mata’s failure to intervene claim on G.M.’s behalf, because Mata cannot show that Rahn violated G.M.’s constitutional rights and establishing a constitutional violation is a necessary predicate to any claim that an officer failed to intervene. The Court further finds that Ahlm is not entitled to qualified immunity on Mata’s failure-to-intervene claims on his behalf and on J.A.M.’s behalf, because there is an issue of fact whether Ahlm had a realistic opportunity to intervene to prevent Rahn’s alleged excessive use of force. I. THE COURT WILL NOT STRIKE REFERENCES IN MATA’S RESPONSE. The Court will not strike the allegations in Mata’s Response. The Officer Defendants argue that the Court has the inherent power' to strike impertinent filings. They argue that Mata’s references are irrelevant to the issues before the Court and that the Response does not conform to the local rules regarding summary judgment procedures. The Court has recently proposed amendments to D.N.M.LR-Civ. 56.1(b) that will require the party responding to the motion for summary judgment to number any additional facts, and the party moving for summary judgment to specify whether the additional facts are disputed or not in its reply. A “redline” version of the proposed revisions to the Local Rules of Civil Procedure of the United States District Court for the District of New Mexico is currently available on the Court’s website at www.nmcourt.fed.us. The proposed revisions were posted for public comment. The period for public comment closed November 24, 2010. The Court will now consider the comments and further revisions, as necessary. The proposed version of D.N.M.LR-Civ. 56.1(b) states: The Memorandum must set out a concise statement of all of the material facts as to which the movant contends no genuine issue exists. The facts must be numbered and must refer with particularity to those portions of the record upon which the movant relies. The Response must contain a concise statement of the material facts cited by the movant as to which the non-movant contends a genuine issue does exist. Each fact in dispute must be numbered, must refer with particularity to those portions of the record upon which the non-movant relies, and must state the number of the movant’s fact that is disputed. All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted. The Response may set forth additional facts other than those ivhich respond to the Memorandum which the nonmovant contends are material to the resolution of the motion. Each additional fact must be lettered and must refer with particularity to those portions of the record upon which the non-movant relies. The Reply must contain a concise statement of those facts set forth in the Response which the movant disputes or to which the movant asserts an objection. Each fact must be lettered, must refer with particularity to those portions of the record upon which the movant relies, and must state the letter of the non-movant’s fact. All material facts set forth in the Response will be deemed undisputed unless specifically controverted. Proposed revisions to D.N.M.LR-Civ. 56.1(b) (emphasis added). The Court’s proposed rule 56.1(b) addresses additional proposed facts in a response to a motion for summary judgment. It appears that Mata was attempting to assert additional undisputed facts, and, as demonstrated by the Court’s proposed rule 56.1(b), this format is not out of line with the Court’s summary judgment procedures. Rule 12(f) of the Federal Rules of Civil Procedure states: (f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading. Fed.R.Civ.P. 12(f). “The rule does not require that a movant show prejudice and the advisory committee notes do not contemplate such a requirement.” Lane v. Page, 272 F.R.D. 581, 598 (D.N.M.2011) (Browning, J.). The Court has stated that it agrees with the United States Court of Appeals for the Ninth Circuit, which does not require movants to show prejudice, “that it should not add a requirement that the drafters did not place there, and that the Supreme Court and Congress did not ratify.” Lane v. Page, 272 F.R.D. at 600. This Court has noted: “Striking a pleading or part of a pleading is a ‘drastic remedy and because a motion to strike may often be made as a dilatory tactic, motions to strike under Rule 12(f) generally are disfavored.’ ” Sai Broken Arrow C, LLC v. Guardian Emergency Vehicles, Inc., No. 09-CV0455-CVE-FHM, 2010 WL 132414, at *5 (N.D.Okla. Jan. 8, 2010) (quoting Burget v. Capital W. Sec., Inc., 2009 WL 4807619, *1 (W.D.Okla. Dec. 8, 2009)). “Allegations will not be stricken as immaterial under this rule unless they have no possible bearing on the controversy.” Sai Broken Arrow C, LLC v. Guardian Emergency Vehicles, Inc., 2010 WL 132414, at *5 (quoting Bd. of County Comm’rs of the County of La Plata, Colo. v. Brown Group Retail, Inc., Civ. No. 08-CV-00855-LTB, 2009 WL 2514094, at *2 (D.Colo. Aug. 14, 2009)); Roderick Revocable Living Trust v. XTO Energy, Inc., No. 08-1330-JTM, 2009 WL 603641, at *2 (D.Kan. Mar. 9, 2009) (“A motion to strike will usually be denied unless the allegations have no possible relation to the controversy and may prejudice one of the parties.”) (quoting Miller v. Pfizer, Inc., No. Civ. A. 99-2326-KHV, 1999 WL 1063046, at *3 (D.Kan. Nov. 10, 1999)). Lane v. Page, 727 F.Supp.2d 1214, 1224 (D.N.M.2010) (Browning, J.). The issues before the Court are whether Rahn’s actions were objectively reasonable in light of the facts and circumstances “without regard to their underlying intent or motivation,” Graham v. Connor, 490 U.S. at 397, 109 S.Ct. 1865, and whether Ahlm had a realistic opportunity to intervene, See Hall v. Burke, 12 Fed.Appx. 856, 861 (10th Cir.2001). Although Mata’s allegations may not, in and of themselves, create a genuine issue of fact precluding summary judgment, the Court will consider the factual allegations as factual background, because it cannot say that the allegations have no possible bearing on the controversy before it. For example, Mata’s allegations that his family had a contentious relationship with FPD and that his family felt persecuted relates to his damages for emotional distress. The Court thus will not employ the drastic remedy of striking a portion of a pleading, and it will not strike Mata’s allegations. Instead, it will include Mata’s allegations as a factual background for the incident which gave rise to this litigation. II. RAIIN IS ENTITLED TO QUALIFIED IMMUNITY ON MATA’S EXCESSIVE FORCE CLAIM ON GM.’S BEHALF, BUT HE IS NOT ENTITLED TO QUALIFIED IMMUNITY ON MATA’S EXCESSIVE FORCE CLAIMS ON HIS OWN BEHALF AND ON LAMPS BEHALF. The Officer Defendants argue that Rahn is entitled to qualified immunity on the claim that he used excessive force against Mata and his minor children when he stopped Mata’s vehicle from leaving the scene of a traffic stop by drawing his firearm. They argue that Mata cannot present an excessive force claim on behalf of either of his children, because it is undisputed that they were never seized during the incident and that seizure is a prerequisite to an excessive force claim. The Officer Defendants argue that, while Mata can show that Rahn effectively seized him, he cannot show that the manner in which Rahn accomplished the seizure was objectively unreasonable. The Officer Defendants argue that Tenth Circuit caselaw does not hold now, nor did it hold then, that it would be clearly unreasonable for an officer to make a show of force to stop a vehicle under such circumstances. The Officer Defendants also argue that there does not appear to be caselaw from other circuits that would put Rahn on notice that his show of force was patently unconstitutional. They argue that Mata thus cannot satisfy his burden under the qualified immunity test and show that Rahn’s actions violated a clearly established constitutional right. Mata argues that he and his children were seized within the meaning of the term under the Fourth Amendment. He argues that Rahn used excessive force, because his actions were not objectively reasonable in the circumstances. The Court finds that Rahn is entitled to qualified immunity on Mata’s excessive force claim on G.M.’s behalf, because G.M. was not seized. See Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1187 n. 9 (citations omitted). Mata thus cannot show that Rahn’s conduct violated G.M.’s constitutional rights. See Thomas v. Durastanti, 607 F.3d at 663. The Court will therefore grant summary judgment for Rahn against Mata’s excessive force claim on G.M.’s behalf on the grounds of qualified immunity. See Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.2001) (“If the plaintiff fails to satisfy either part of the two-part inquiry, the court must grant the defendant qualified immunity.” (citation omitted)). The Comb further finds that Rahn is not entitled to qualified immunity on Mata’s excessive force claims on his own behalf and on J.A.M.’s behalf. A reasonable jury could find that Rahn’s conduct violated Mata’s and J.A.M.’s Fourth Amendment rights. See Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1192—93. The Court finds that these rights were clearly established at the time of the alleged violation. See Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1196-97. Because a reasonable jury could find that Rahn’s conduct violated Mata’s and J.A.M.’s clearly established Fourth-Amendment rights, Rahn is not entitled to judgment as a matter of law, and the Court will deny his request for summary judgment on Mata’s excessive force claims on his behalf and on J.A.M.’s behalf on the grounds of qualified immunity. See Nelson v. McMullen, 207 F.3d at 1206. A. RAHN DID NOT SEIZE G.M. The Officer Defendants argue that G.M. was not seized, because it is undisputed that she was not in her father’s vehicle at the time of the incident. They argue that Rahn is thus entitled to qualified immunity. Mata argues that G.M. was seized, because the police restricted her movements. He argues that the police told the entire family to stay on the property and not to interfere with the traffic stop of the driver in the SUV. He further argues that a reasonable child of G.M.’s age would have believed she was restrained from leaving the property. “To state an excessive force claim 'under the Fourth Amendment, plaintiffs must show both that a ‘seizure’ occurred and that the seizure was ‘unreasonable.’ ’ ” Thomas v. Durastanti, 607 F.3d at 663 (citing Childress v. City of Arapaho, 210 F.3d 1154, 1156 (10th Cir. 2000); Brower v. County of Inyo, 489 U.S. 593, 599, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989)). See Flores v. City of Palacios, 381 F.3d 391, 396 (5th Cir.2004) (“To bring a § 1983 excessive force claim under the Fourth Amendment, a plaintiff must first show that she was seized.” (citing Graham v. Connor, 490 U.S. at 388, 109 S.Ct. 1865)). An officer seizes a person when he, “by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 20 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The “governmental termination of freedom of movement” must be made “through means intentionally applied.” Brower v. County of Inyo, 489 U.S. at 596-97, 109 S.Ct. 1378 (emphasis in original). One’s freedom of movement is terminated “if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave,” and the police have applied physical force, however slight, or the person has submitted to a show of authority by the police. Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1187 n. 9 (citations omitted). Rahn did not seize G.M. In the Complaint, Mata alleges excessive force claims only against Rahn. He does not allege that the other officers whom he sued used excessive force; he only contends that they failed to stop Rahn’s use of excessive force. The videotape shows that Ahlm, not Rahn, told the occupants of Mata’s residence to stay in their front yard and to not interfere with the traffic stop. See Unit 9853 Dashcam at 20:40:02-20. Rahn’s only command issued to any of the gathered individuals was a command to stop using profanities. See Unit 9844 Dashcam at 20:44:11-19; Mata Videotape at 8:40:48-8:41:04. Moreover, the dash-cam videos show that FPD officers made no effort to restrict the movements of G.M.’s grandmother, who was walking along the sidewalk in front of the Mata home as the incident unfolded, nor did they try to keep J.A.M. from leaving the sidewalk in front of his property and getting in his father’s vehicle. See Unit 9853 Dashcam at 20:43:56-20:44:14; Unit 9844 Dashcam at 20:44:48. Mata’s minor daughter, G.M. was not a passenger in Mata’s vehicle at the time of the incident; Rahn did not train his firearm on her. See G.M. Depo. at 6:4-8, 10:16-21; G. Mata Depo. at 18:21-19:2. There is no evidence Rahn interacted with her in any way or engaged in show of authority to restrain her movements. Under these circumstances, Rahn did not intentionally terminate G.M.’s freedom of movement. See Brower v. County of Inyo, 489 U.S. at 596-97, 109 S.Ct. 1378. G.M. thus was not seized. The Court does not need to proceed to analyze the excessive force claim involving G.M., because G.M. cannot show that Rahn’s conduct violated a constitutional right. See Saucier v. Katz, 533 U.S. at 201, 121 S.Ct. 2151 (“If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.”); McCormick v. City of Lawrence, 325 F.Supp.2d 1191, 1205 (D.Kan.2004) (“Because the court has determined that no constitutional violation occurred, there is no need to proceed to the second prong of the qualified immunity analysis.”). The Court will thus grant summary judgment for Rahn on Mata’s claims on G.M.’s behalf on the grounds of qualified immunity. See Medina v. Cram, 252 F.3d at 1128 (“If the plaintiff fails to satisfy either part of the two-part inquiry, the court must grant the defendant qualified immunity.” (citation omitted)). B. RAHN SEIZED J.A.M. The Officer Defendants argue that, while J.A.M. was in the front passenger seat of his father’s vehicle at the time of the incident, he was not seized, because it is undisputed that Rahn did not train his firearm on him, and because there is no evidence that Rahn applied any force to J.A.M. no matter how slight, or issued any commands to him to get him to submit to police authority. They argue that Rahn is thus entitled to qualified immunity. The Defendants argue that, even if the Court were to find that J.A.M. submitted to the show of authority that was directed at his father, Rahn’s show of force against Mata was objectively reasonable under the circumstances. Mata argues that J.A.M. was seized, because he was in the vehicle with his father who was “being held at gunpoint and being told to stop the car.” Response at 16. He argues that J.A.M. undoubtedly believed he was not free to leave and that a reasonable seven-year-old would not believe he was free to leave the scene in the circumstances. The Supreme Court has stated: A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver, diverting both from the stream of traffic to the side of the road, and the police activity that normally amounts to intrusion on “privacy and personal security” does not normally (and did not here) distinguish between passenger and river. Brendlin v. California, 551 U.S. 249, 257, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). Mata, however, is not challenging the legality of the traffic stop on J.A.M.’s behalf. Mata thus must demonstrate that there was a governmental termination of J.A.M.’s freedom of movement through means intentionally applied. See Brower v. County of Inyo, 489 U.S. at 596-97, 109 S.Ct. 1378. One’s freedom of movement is terminated “if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave,” and the police have applied physical force, however slight, or the person has submitted to a show of authority by the police. Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1187 n. 9 (citations omitted). As the Supreme Court has observed: “A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth Amendment is concerned.” Brendlin v. California, 551 U.S. at 254, 127 S.Ct. 2400. A reasonable child would not have felt free to leave in the circumstances. Videotape of the incident does not clearly show where Rahn’s firearm was trained; however, as Mata stopped his vehicle, the flashlight at the end of Rahn’s firearm can be seen shining on the lower portion of the driver’s side window. See Unit 9853 Dash-cam at 20:45:12-19. Although the videotape does not clearly show where Rahn had his firearm trained during this incident, Mata’s minor son, J.A.M., who was traveling in the front passenger seat of the vehicle at the time, testified that Rahn pointed the gun at his father, but that the gun was “sort of’ pointing at him as well in that — “if it would have shot my dad, it would have shot me, too.” J.A.M. Depo. at 10:18-23, 11:10-18. Mata’s mother, who was standing alongside the passenger side of the vehicle and facing in towards the interior of the vehicle at the time when Rahn pulled out his firearm, testified that Rahn did not point his firearm at Mata’s minor son, J.A.M., See G. Mata Depo. at 23:21-24:9 (stating that the police pointed the gun only at Mata and that the officer did not point the gun at J.A.M.); however, there is evidence that J.A.M. may have been in the line of fire had Rahn fired his gun, See J.A.M. Depo. at 10:18-23, 11:10-18. J.A.M. did not get out of the car, even though there is evidence in the record that he was not restrained the “entire time the car was moving on the roadway.” Ahlm Depo. at 76:1-24. Under these circumstances, J.A.M. “was ‘seized’ within the meaning of the Fourth Amendment because no reasonable child would have believed that he was free to leave.” Doe v. Heck, 327 F.3d 492, 510 (7th Cir.2003) (finding that, under the circumstances, the child was seized when he was escorted from class by a principal, the defendant caseworkers, and a uniformed police officer, into the nursery and was then questioned about the details of his family life). As the United States Court of Appeals for the Second Circuit stated in Kia P v. McIntyre, 235 F.3d 749 (2d Cir.2000), in which it found a minor child was seized: Although the usual phrasing of the seizure test is difficult to apply here — [the infant] is unlikely to have had a “belief’ as to whether or not she was free to leave the Hospital — [the infant’s motion] was told in no uncertain terms that she could not take [the infant] home from the Hospital. It was clear to [the mother], if not to [the infant], that [the infant] was not free to leave. Kia P v. McIntyre, 235 F.3d at 762. The Court will thus proceed to analyze the excessive force claim on J.A.M.’s behalf. C. A REASONABLE JURY COULD FIND THAT RAHN’S DISPLAY OF FORCE VIOLATED MATA’S AND J.A.M.’S FOURTH-AMENDMENT RIGHTS. The Officer Defendants argue that Rahn is entitled to qualified immunity on the excessive force claim involving Mata and on the excessive force claim involving J.A.M., because the undisputed facts show that it was not unreasonable for Rahn to display his firearm at a traffic stop involving a seatbelt violation. The Officer Defendants argue that it is clear from the dashcam videotapes that a police officer, possessing all the facts that Rahn possessed at the time of the incident, could reasonably conclude that Mata’s actions warranted a show of force. Mata argues that Rahn used excessive force, because his actions were not objectively reasonable in the circumstances. Courts analyze Fourth-Amendment excessive force claims “under the ‘objective reasonableness’ standard that governs other Fourth Amendment inquiries.” Cordova v. Aragon, 569 F.3d at 1188. See Graham v. Connor, 490 U.S. at 395, 109 S.Ct. 1865 (“[A]ll claims that law enforcement officers have used excessive force ... in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.”). “In analyzing the reasonableness of the alleged seizure, the key inquiry is ‘whether it would be clear to a reasona