Wilson v. Jara (866 F. Supp. 2d 1270, 2011)

United States District Court for the District of New Mexico 2011-10-17

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Plaintiff Martha Wilson’s Motion for Summary Judgment, filed July 6, 2011 (Doc. 31). The Court held a hearing on October 4, 2011. The primary issues are: (i) whether Defendants Jennifer Jara and Daniel Vazquez seized Plaintiff Wilson in her home in violation of the Fourth Amendment of the United States Constitution; (ii) whether Jara and Vazquez searched Wilson’s home in violation of her Fourth-Amendment rights; (in) whether Jara and Vazquez arrested Wilson without probable cause when they arrested her for resisting arrest and obstruction; (iv) whether qualified immunity shields Jara and Vazquez from civil liability under 42 U.S.C. § 1983; and (v) whether the Family Violence and Protection Act, N.M.SA. 1978, § 40-13-7, shields the Defendants from civil liability. The Court concludes that Jara and Vazquez unconstitutionally seized Wilson in her home and that the Defendants are not entitled to qualified immunity on that claim. The Court will therefore grant Wilson’s Motion for Summary Judgment as it pertains to the unconstitutional seizure. Because of factual disputes, the Court will deny Wilson’s Motion for Summary Judgment as it relates to all other claims that Wilson asserts in Count III.

FACTUAL BACKGROUND

While the Defendants dispute many of Wilson’s statements of allegedly undisputed facts, most, if not all, of the material facts are undisputed.

On August 16, 2007, Wilson and Plaintiff Timothy Chabot, Wilson’s son, were at their home, an apartment on Tramway Boulevard in Albuquerque, New Mexico. See Deposition of Martha Wilson at 30:15-19 (taken June 8, 2011), filed July 6, 2011 (Doc. 31-1) (“Wilson Depo.”); Plaintiff Martha Wilson’s Motion for Summary Judgment ¶ 1, at 1, filed July 6, 2011 (Doc. 31) (“Motion SJ”) (setting forth this fact); Defendants’ Response to Plaintiff Martha Wilson’s Motion for Summary Judgment as to Count III at 2, filed July 27, 2011 (Doc. 38) (“Response”) (admitting this fact). Wilson shared her home with T. Chabot and her daughter, Haley Chabot. See Wilson Depo. at 28:24-21:5; Motion SJ ¶ 2, at 1 (setting forth this fact); Response at 2 (admitting this fact). Jara and Vazquez were dispatched to Wilson’s home on a complaint about two males fighting. See Deposition of Jennifer Jara at 32:2-4, filed July 6, 2011 (Doc. 31-2) (“Jara Depo.”); Motion SJ ¶ 3, at l(setting forth this fact); Response at 2 (admitting this fact). H. Chabot made a 911 call to report: (i) an altercation between her friend and her brother, T Chabot; (ii) that she did not know if T. Chabot had weapons; and (iii) that T. Chabot had grabbed Wilson by the arms. See Albuquerque Police Department Research and Recording Incident Recall History, filed July 27, 2011 (Doc. 38-1) (“Incident History”); Dispatch Recording of Haley Chabot’s 911 Call (dated August 16, 2007), filed July 27, 2011 (Doc. 38-2) (“H.’s 911 Call”); Response ¶ A, at 6 (setting forth this fact). Wilson’s neighbor, Lydia Deraymus, also made a 911 call, reporting a woman screaming for help, and a neighbor named Dennis made a 911 call, reporting fighting and yelling. See Dispatch Recording of Lydia Deraymus’s 911 Call at 3:14-17 (dated August 16, 2007), filed July 27, 2011 (Doc. 38-3) (“L.’s 911 Call”); Dispatch Recording of Dennis’ 911 Call at 3:18-20 (dated August 16, 2007), filed July 27, 2011 (Doc. 38-4) (“D.’s 911 Call”); Response ¶¶ B-C, at 6 (setting forth these facts). Jara made contact with H. Chabot in the apartment complex upon arrival, and H. Chabot stated that her brother, T. Chabot, had spat on her and that he was still at home. See Jara Depo. at 35: 22-25; Motion SJ ¶ 4, at 2 (setting forth this fact); Response at 2 (admitting this fact). H. Chabot also stated that T. Chabot was intoxicated and belligerent, and had yelled that he wanted to kill someone. See Jara’s Police Report at 1 (dated August 16, 2007), filed July 27, 2011 (Doc. 38-5) (“Jara Report”); Jara Depo. at 34:23-35:7; Response ¶ D, at 6 (setting forth this fact). H. Chabot was outside the home at the time of the interview. See Jara Depo. at 33: 7-8; Motion SJ ¶ 5, at 2(setting forth this fact); Response at 2 (admitting this fact). After speaking with H. Chabot, the disturbance call turned into a domestic violence call. See Jara Depo. at 35:17-20; Response ¶ G, at 7 (setting forth this fact). At this point, the Defendants had probable cause to arrest T. Chabot for domestic violence. See Jara Depo. at 21:20-22:21; Response ¶ H, at 7 (setting forth this fact). The alleged incident had occurred anywhere from one hour to two hours before the police arrived. See Wilson Depo. at 42:17-18; Motion SJ ¶ 6, at 2(setting forth this fact); Response at 2 (admitting this fact).

Vazquez knew that H. Chabot did not intend to return home that evening. See Deposition of Daniel Vazquez at 26:8-13 (taken July 8, 2011), filed July 6, 2011 (Doc. 31-3) (“Vazquez Depo.”); Motion SJ ¶ 7, at 2 (setting forth this fact). After interviewing H. Chabot, Jara and Vazquez went to the Wilson home and knocked on the door. See Vazquez Depo. at 31: 3-10; Motion SJ ¶ 8, at 2 (setting forth this fact); Response at 2 (admitting this fact). Jara and Vazquez announced themselves, remaining outside the apartment, and Wilson answered the door. See Vazquez Depo. at 31:8-25; Deposition of Daniel Vazquez at 32:1 (taken July 8, 2011), filed July 27, 2011 (Doc. 38-6) (“Vazquez Depo.”); Deposition of Launa Markel at (taken November 30, 2010), filed July 27, 2011 (Doc. 38-7) (“Markel Depo.”); Response IT I, at 7 (setting forth this fact). Wilson’s apartment is at the top of a stairwell. See Vazquez Depo. at 29:18-20; Response ¶ F, at 7 (setting forth this fact). There was no disturbance at the apartment when they arrived. See Vazquez Depo. at 36: 10-12; Motion SJ ¶ 9, at 2 (setting forth this fact); Response at 2 (admitting this fact).

When Wilson answered the door, Jara and Vazquez informed Wilson that H. Chabot indicated that T. Chabot had committed domestic violence upon her and requested to speak with T. Chabot. See Transcript of Officer Jara’s Belt Tape at 2:18-3:10 (August 16, 2007) filed July 27, 2011 (Doc. 3 8-8) (“Jara’s Belt Tape”); Response ¶ J, at 7 (setting forth this fact). Wilson explained to Jara and Vazquez that H. Chabot had a male friend over and that an argument between the friend and T. Chabot “escalated into a fight.” Wilson Depo. at 44:2-5; Motion SJ ¶ 10, at 2 (setting forth this fact); Jara’s Belt Tape at 3:2-8; Response ¶ 10, at 7 (disputing this fact). Jara and Vazquez told Wilson that they needed to conduct the investigation into the domestic violence allegation, and that required speaking to T. Chabot. See Jara Depo. at 39:23-24; Motion SJ ¶ 11, at 2; Response at 2 (admitting this fact). Wilson stated multiple times that T. Chabot was “in bed,” and “not doing anything,” in response to Jara and Vazquez’ requests to speak with him. Jara told Wilson that it did not matter that T. Chabot was in bed, and, when asked, Wilson agreed that T. Chabot was intoxicated. See Jara’s Belt Tape at 3:12-15; Response ¶ L, at 8 (setting forth this fact).

Wilson expressed concern that the officers might tase her son. See Jara’s Belt Tape at 3:17-25; Response ¶ M, at 8 (setting forth this fact). Jara and Vazquez responded that they had no intention of tasing T. Chabot, repeated their request to speak to T. Chabot, and stated that they did not want any problems with Wilson. See Jara’s Belt Tape at 3:17-4:25; Response ¶ M, at 8 (setting forth this fact). Wilson continued to refuse to retrieve T. Chabot, and denied that Jara and Vazquez were having a problem with her. See Jara’s Belt Tape at 5:1-17; Response ¶ N, at 8 (setting forth this fact). Jara and Vazquez ordered Wilson to go get her son or they would come in to get him. See Jara Depo. at 45:2-12, 61:22-23, 62:15-17; Motion SJ ¶ 13, at 2 (setting forth this fact); Jara’s Belt Tape at 6:15-7:4; Response ¶ 0, at 8. Wilson asserts that she did not feel free to terminate the encounter. See Wilson Depo. at 45:21-46:8; Motion SJ ¶ 14, at 2 (setting forth this fact). After Jara stated that they could go in to get him, Wilson responded that she would retrieve T. Chabot. See Jara’s Belt Tape at 6:15-7:4; Response ¶ Q, at 8 (setting forth this fact). Jara and Vazquez allowed Wilson to retrieve her son alone, despite officer safety concerns. See Vazquez Depo. at 44:1-13; Response ¶ Q, at 8 (setting forth this fact). Wilson went to retrieve her son and voluntarily left the door open. See Jara Depo. at 49:15-18; Deposition of Martha Wilson at 46:9-19 (dated June 8, 2011), filed July 27, 2011 (Doc. 38-9) (“Wilson Depo.”); Motion SJ at ¶ 16, at 3 (setting forth this fact); Response ¶ R, at 9 (setting forth this fact). Jara would not have let Wilson close the door and terminate the encounter. See Jara Depo. at 49:15-50:4, 62:15-21; Motion SJ ¶ 15, at 2 (setting forth this fact).

Wilson retrieved T. Chabot, and he stood in the doorframe, but still in the interior of the apartment. See Wilson Depo. at 47:8-13; Motion SJ ¶ 17, at 3 (setting forth this fact). Jara and Vazquez asked T. Chabot to speak with them at the bottom of the stairs. See Vazquez Depo. at 49:9-12; Motion SJ ¶ 18, at 3 (setting forth this fact); Response ¶ T, at 9 (setting forth this fact). Wilson responded that T. Chabot did not need to go downstairs with them, and Vazquez repeated his request. See Jara’s Belt Tape at 7:14-23; Response at HT, at 9 (setting forth this fact). T. Chabot did not voluntarily go outside. See Vazquez Depo. at 51:1-5; Motion SJ ¶ 19, at 3 (setting forth this fact). Jara and Vazquez ordered T. Chabot to go downstairs to speak with them, and said that he had no choice but to follow their order. See Jara Depo. at 67:4-8; Motion SJ ¶ 20, at 3 (setting forth this fact). Wilson blocked T. Chabot from going downstairs, at which point Jara and Vazquez decide to arrest T. Chabot based on the battery of H. Chabot. See Jara Report at 1; Vazquez Depo. at 51:12-52:20; Response HU, at 9 (setting forth this fact).

Jara and Vazquez reached into the apartment, beyond the threshold, to arrest T. Chabot, and T. Chabot stepped deeper into the apartment. See Jara Depo. at 72:9-23; Vazquez Depo. at 52:1-25, 57:20-25; Wilson Depo. at 50:7-14; Motion SJ at ¶¶ 21-22, at 3 (setting forth these facts); Response IV, at 9. When T. Chabot retreated, Wilson grabbed Vazquez’ arm and the force of T. Chabot’s retreat physically pulled Vazquez into the apartment. See Vazquez Depo. at 57:24-58:2; Motion SJ ¶ 23, at 3 (setting forth this fact). Vazquez extended his arm out, making contact with Wilson’s person, to have her step back. See Vazquez Depo. at 62:10-17; Motion SJ. ¶ 24, at 3 (setting forth this fact). Wilson objected to Jara and Vazquez’ entry into her home. See Wilson Depo. at 55:7-9; Motion SJ ¶ 25, at 3 (setting forth this fact). Jara and Vazquez believed that there was a legal basis to enter Wilson’s apartment. See Vazquez Depo. at 54:19-55:2, 80:1-81:25, 84:1-10, 85:22-25; Jara Depo. at 41:10-24, 43:1-49:11; Response ¶ 28, at 5-6 (setting forth this fact).

Police officers are on heightened alert with domestic violence calls because they are the type of incidents where an officer is most likely to be injured or killed. See Vazquez Depo. at 78:6-21; Response ¶ X, at 10 (setting forth this fact). Jara and Vazquez did not want to speak to T. Chabot at the top of the stairwell because of officer safety concerns about being pushed down or falling down the stairs. See Vazquez Depo. at 78:22-25, 79:11-16; Response ¶¥, at 10 (setting forth this fact). Jara and Vazquez did not want to speak to T. Chabot in the doorway — “the fatal funnel” — because of officer safety concerns and because it is a confined space, difficult to seek cover, and left them exposed. See Vazquez Depo. at 78:22-79:10; Response ¶ Z, at 10 (setting forth this fact).

After cuffing T. Chabot, Jara and Vazquez took him downstairs, and Jara told Wilson to remain upstairs and not to follow them or that she too would be arrested. See Markel Depo. at 26:15-27:25; Jara Depo. at 74:1-76:12; Response ¶ AA, at 10 (setting forth this fact). Wilson ignored Jara’s request to not follow them downstairs. See Jara Depo. at 73:17-75:12; Markel Depo. at 26:15-28:13, 36:17-21; Response ¶ BB, at 10 (setting forth this fact).

Wilson grabbed Vazquez again, and Vazquez again made physical contact with her in an attempt to create space. See Wilson Depo. at 55:23; Motion SJ ¶ 26, at 3 (setting forth this fact); Vazquez Depo. at 62:12-17; Vazquez Depo. at 63:1-19; Response ¶ 26, at 5 (setting forth this fact). Neighbors were being disturbed and came outside because of Wilson’s and T. Chabot’s conduct. See L.’s 911 Call at 1-2; D.’s 911 Call at 2-4; Jara Depo. at 18-24; Markel Depo. at 24:1-25:25; Response ¶ CC, at 10 (setting forth this fact). Wilson continued to disobey police orders. See Jara Depo. at 76:14-77:25; Jara Depo. at 78:1-17. Jara arrested Wilson for battery on a police officer, disorderly conduct, and resisting arrest/obstructing justice. See Jara Depo. at 76:1-8; Motion SJ ¶ 27, at 3 (setting forth this fact).

PROCEDURAL BACKGROUND

Wilson and T. Chabot, filed the Complaint in the Second Judicial District, Bernalillo County, State of New Mexico, on July 15, 2010. See Complaint to Recover Damages for Deprivation of Civil Rights (dated July 15, 2010), filed August 25, 2010 (Doc. 1-1) (“Complaint”). She brought suit under 42 U.S.C. § 1983 and alleges: (i) Arrest and Prosecution Without Probable Cause (Count I); (ii) Fourth Amendment Claim for Excessive Use of Force (Count II); and (iii) Fourth Amendment Claim for Warrantless Arrest in Home and Unlawful Entry Into Home (Count III). See Complaint ¶¶ 22-23, 28, 33, at 3-5. On August 25, 2011, the Defendants removed the case to federal court pursuant to 28 U.S.C. § 1331 federal-question jurisdiction. See Notice of Removal ¶ 6, at 2, filed August 25, 2011 (Doc. 1). After removing the case, the Defendants filed Defendants’ Answer to Plaintiffs’ Complaint, filed August 26, 2011 (Doc. 6) (“Answer”). The Defendants denied the Plaintiffs’ claims, and asserted that: (i) they are entitled to qualified immunity; (ii) the Plaintiffs or third persons caused the Plaintiffs’ injuries; (iii) the arrest-without-warrant provision of N.M.S.A.1978, § 31-1-7 shields them from liability; and (iv) the Family Violence Protection Act, bars one or more of the Plaintiffs’ claims. See Answer at 3-6.

On July 6, 2011, Wilson moved for summary judgment on Count III of her Complaint, in which she seeks damages as a result of an unlawful in-home detention and arrest. See Motion SJ at 1. Wilson alleges that the Defendants seized her in her home, acted in excess of their authority, conducted a search when they reached across the threshold of the Wilson home to arrest T. Chabot, and acted without probable cause. See Motion SJ at 4-7. On July 27, 2011, the Defendants responded and asserted qualified immunity as well as immunity under the Family Violence Protection Act. See Response at 11, 23. The Defendants argue that Jara and Vazquez’ actions constituted a threshold arrest, and not an unlawful entry. See Response at 12-15. The Defendants also contend that their request to Wilson was not a seizure, that they had probable cause to seize Wilson, and that there were exigent circumstances to enter the home. See Response at 12-23.

On October 4, 2011, the Court held a hearing on Wilson’s Motion for Summary Judgment. At the hearing, T. Chabot’s attorney informed the Court that T. Chabot is no longer pursuing his claims and that Wilson’s claims are the only claims remaining before the Court. See Transcript of Hearing at 39:10-16 (October 4, 2011) (Court, Kennedy) (“Tr.”). Wilson argued that the conversation with Jara and Vazquez at the threshold of her home evolved into a seizure, because “the officers conveyed a message to her that compliance with their request was required.” Tr. at 4:15-5:8 (Kennedy). Wilson contends that under the standard articulated in Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), the encounter became a seizure at the moment the officers gave the order “go get your son or we will be getting him for you,” which Wilson was not at liberty to ignore. Tr. at 4:15-5:8 (Kennedy). Wilson asserted that an unconstitutional search took place when Jara and Vazquez reached “across the doorway to pull Plaintiffs [son] ... from the inside of his home outside.” Tr. at 5:9-15, 9:9-22 (Kennedy). Relying on Jara’s deposition, Wilson stated that it was undisputed that T. Chabot never left the apartment. See Tr. at 5:18-6:10 (Court, Kennedy). In response to legal arguments that the Defendants raised in their Response, Wilson argued that the controlling authorities for a threshold arrest are Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), and McClish v. Nugent, 483 F.3d 1231 (11th Cir.2007), and that Jara and Vazquez were on notice that “to reach across the threshold of a home is ... an unlawful search” as of 2007. Tr. at 6:17-7:25 (Kennedy). Responding to the Court’s question, Wilson stated that she did not believe that the Defendants disputed any material facts in their Response and that several of their facts, including that they ordered Wilson to go get her son, support Wilson’s motion. See Tr. at 10:15-11:24 (Kennedy).

The Defendants argued that the request that Wilson retrieve her son was not compulsory. See Tr. at 12:13-19 (Hoden). They assert that Wilson had an option “Ma'am if you don’t go get your son then we’ll go get your son” and that they had no intent to seize Wilson. Tr. at 12:13-19 (Hoden). The Defendants conceded that it is undisputed that Jara and Vazquez said “you either produce your son or we’re going to come in.” Tr. at 13:5-9 (Court, Hoden). The Defendants also agreed that, to anyone listening to that statement, it would be a police order. See Tr. at 14:22-25 (Court, Hoden). Later in the hearing, the Defendants clarified their position on whether it was an order, they explained that it looks like an order “if you’re looking at that one particular portion of the sentence,” but that, looking at the totality of the circumstances, Wilson “felt she had the right to, obviously, argue with police, because she continued to do it.” Tr. at 18:25-19:8 (Hoden). Relying on United States v. Abdenbi, 361 F.3d 1282 (10th Cir.2004), the Defendants argued that the request to Wilson was not a seizure. See Tr. at 15:3-14 (Hoden). The Defendants also asserted that it was their position that Wilson “was free to disregard that order” and that “she was free to ignore it because she was not seized.” Tr. at 15:17-24, 16:18-23 (Court, Hoden). The Defendants assert that, for a seizure to occur, “[t]hey ... would [need to] tell her that she was going to be seized and ... asserted some sort of physical control over her.” Tr. 17:1-3 (Hoden).

The Defendants also disputed that a search occurred, arguing that a valid “threshold arrest” took place. Tr. 20:9-10 (Hoden). They asserted that, when an arrest is initiated at the doorway, even if it continues further into the home, it is valid. See Tr. at 20:15-21:4 (Court, Hoden). Although the Defendants agreed that the general rule is that a warrantless arrest cannot take place in a home even if there is probable cause, they asserted that, when a person comes to the door, and into public view, it is no longer considered an arrest in the home. See Tr. at 21:12-22:1 (Court, Hoden). The Defendants also contended that Payton v. New York, was distinguishable on its facts because there the police pried open the door to the home with a crowbar. See Tr. at 22:13-25 (Hoden).

Addressing Wilson’s arrest, the Defendants asserted that Wilson disregarded police orders, was in Jara’s face, and was “almost chesting her.” Tr. 24:12-20 (Ho-den). When asked to turn around so that Jara could arrest her, the Defendants argue that Wilson continued to resist and refused to turn around. See Tr. 24:18-20 (Hoden). The Defendants contended that there were officer safety issues which could create exigent circumstances, because this was a domestic violence call. See Tr. at 33:3-12, 34:4-9 (Court, Hoden). They also asserted that whether H. Chabot was returning to the apartment is a material fact which is disputed and goes to whether exigent circumstances exist. See Tr. at 34:21-35:1 (Hoden). Responding to a question whether a finding of an unconstitutional seizure would taint the arrest, the Defendants asserted that the standard is “whether she was reasonably protesting” and contended that it is unreasonable “to be physically grabbing at the officers ... she was doing this multiple times.” Tr. 24:21-25:12 (Court, Hoden). Finally, the Defendants argued that Wilson “is basically trying to argue ... the propriety of the Fourth Amendment rights of the son as opposed to her own rights.” Tr. 25:15-23 (Hoden).

Wilson asserts that the Defendants are requesting that the Court find an “open door exception” to the warrant requirement and that the caselaw does not support such a rule. Tr. at 27:6-14 (Kennedy). Arguing that there is a clearly established violation of Fourth Amendment rights in this case, Wilson distinguishes McKinnon v. Carr, 103 F.3d 934 (10th Cir.1996), to which the Defendants cite, because in that case, the defendant acquiesced to the police officers entering his home. See Tr. at 28:5-14 (Kennedy). Wilson also contended that there is a link between the unconstitutional seizure and the unconstitutional arrest, arguing that but1 for Jara and Vazquez’ unlawful conduct, Wilson would not have been put in a place where she had to assert her constitutional right. See Tr. 30:18-31:10 (Kennedy). Wilson stated that the reasonableness of her protest of the constitutional violations is a question of law. See Tr. at 32:6-12 (Court, Kennedy). Addressing the Defendants’ exigent circumstances argument, Wilson asserted that there is no warrant exception for what might happen in the future and that whether H. Chabot was going to return to the apartment is immaterial. See Tr. 35:10-36:8 (Kennedy). Additionally, Wilson stated that the Defendants are arguing a “generalized officer safety” exigent circumstance, which Wilson contends would “completely obliterate the Fourth Amendment.” Tr. 36:9-10 (Kennedy).

Because Wilson did not file a Reply in this case, the Court asked whether Wilson disputed the additional facts that the Defendants added in their response. See Tr. 36:24-37:2 (Kennedy). Wilson replied that she did not dispute the Defendants’ additional facts and did not consider -them material. See Tr. at 36:24-37:13 (Court, Kennedy).

LEGAL STANDARD FOR MOTIONS FOR SUMMARY JUDGMENT

Rule 56(c) of the Federal Rules of Civil Procedure 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). 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).

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). See 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). 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 proper ly 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); 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)).

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 1535, 1539 (10th Cir.1993) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505). 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 & 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. “[Tjhere 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 (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, at 550-55, 119 S.Ct. 1545; Anderson v. Liberty Lobby, Inc., All U.S. at 255, 106 S.Ct. 2505 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”). 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 42 U.S.C. § 1983

Section 1983 of Title 42 of the United States Code provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. Section 1983 creates only the right of action; it does not create any substantive rights; substantive rights must come from the United States Constitution or from federal statute. See Spielman v. Hildebrand, 873 F.2d 1377, 1386 (10th Cir.1989) (“Section 1983 does not provide a remedy if federal law does not create enforceable rights.”). Rather, § 1983 authorizes an injured person to assert a claim for relief against a person who, acting under color of state law, violated the claimant’s federally protected rights. Thus, to state a claim upon which relief can be granted under § 1983, a plaintiff

must establish (1) a violation of rights protected by the federal Constitution or created by federal statute or regulation, (2) proximately caused (3) by the conduct of a “person” (4) who acted under color of any statute, ordinance, regulation, custom[,] or usage, of any State or Territory or the District of Columbia.

Martinez v. Martinez, No. 09-0281, 2010 WL 1608884, at *11(D.N.M. March 30,-2010) (Browning, J.) (quoting Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.2002)). Neither the civil-rights statutes nor the Fourteenth Amendment, however, are a license to the federal judiciary to displace state law through the creation of a body of general federal tort law. See Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (Fourteenth Amendment); Griffin v. Breckenridge, 403 U.S. 88, 101-02, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971) (civil-rights statute).

Section 1983 provides a cause of action only for violations of a plaintiffs personal rights and not for the rights of someone else. See Archuleta v. McShan, 897 F.2d 495, 497 (10th Cir.1990). Historically, the guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property. See Archuleta v. McShan, 897 F.2d at 497 (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). Moreover, the element of deliberateness requires directing of the misconduct toward the plaintiff before the Due Process Clause is implicated. See Archuleta v. McShan, 897 F.2d at 499. In Archuleta v. McShan, the Tenth Circuit used the term “bystander” to refer to someone who witnessed a police action, but who is not himself or herself part of the action. As such, a bystander is unable to assert the kind of deliberate deprivation of his or her rights necessary to state a due-process claim under § 1983. See also Grandstaff v. City of Borger, 767 F.2d 161, 172 (5th Cir.1985) (holding that a rancher’s wife and stepsons who witnessed a mistaken shooting of the rancher by police had no constitutional claim for their own emotional injuries under § 1983, because there is no constitutional right to be free from witnessing this police action); Coon v. Ledbetter, 780 F.2d 1158, 1160-61 (5th Cir.1986) (holding that the wife who witnessed sheriffs deputies shooting into her mobile home had no constitutional claim for emotional injuries, because the deputies’ action was not directed towards her).

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. at 807, 102 S.Ct. 2727. “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. 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) (per curiam)).

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. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). 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).

In evaluating whether the right was clearly established, the court considers whether the right was sufficiently clear that a reasonable government employee in the defendant’s shoes would understand that what he did violated that right. See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir. 2007). 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, 172-73 (D.C.Cir.1983), cert. denied, 469 U.S. 880, 105 S.Ct. 244, 83 L.Ed.2d 182 (1984). “Or dinarily, 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.” Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001). See Medina v. City & Cnty. of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992). On the other hand, the Supreme Court of the United States has observed 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). “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 Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).

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 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.” 129 S.Ct. at 821. The Supreme Court also noted in Pearson v. Callahan that, while no longer mandatory, the protocol outlined in Saucier v. Katz will often be beneficial. See 129 S.Ct. at 821. 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 & Cnty. of Denver, 998 F.2d 867, 870-71 (10th Cir.1993).

LAW REGARDING THE FOURTH AMENDMENT

The Fourth Amendment to the United States Constitution “protects ‘[t]he right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures.’ ” United States v. Thompson, 524 F.3d 1126, 1132 (10th Cir.2008) (quoting U.S. Const, amend. IV). It also commands that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. “The security of one’s privacy against arbitrary intrusion by the police — which is at the core of the Fourth Amendment — is basic to a free society.” Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

1. Requirements for Fourth Amendment Seizures and Arrests.

For purposes of analyzing Fourth Amendment seizures, the Tenth Circuit has divided interactions between police and citizens into three categories: (i) consensual encounters; (ii) investigative stops; and (in) arrests. See Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir.2000). A consen sual encounter occurs when a police officer approaches a person to ask questions under circumstances where a reasonable person would feel free to refuse to answer and to end the encounter. See Oliver v. Woods, 209 F.3d at 1186. For example, officers generally may “go to a person’s home to interview him,” United States v. Daoust, 916 F.2d 757, 758 (1st Cir.1990), because “[i]t is not improper for a police officer to call at a particular house and seek admission for the purpose of investigating á complaint or conducting other official business,” 1 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.3(b), at 475 (3d ed. 1996). Such encounters generally “are not seizures within the meaning of the Fourth Amendment, and need not be supported by suspicion of criminal wrongdoing.” Oliver v. Woods, 209 F.3d at 1186.

a. Requirements for Seizures.

In United States v. Reeves, 524 F.3d 1161 (10th Cir.2008), the Tenth Circuit established that “[o]pening the door to one’s home is not voluntary if ordered to do so under color of authority.” 524 F.3d at 1167. The Tenth Circuit has repeatedly held that, absent exigent circumstances, officials acting under the color of authority and without a warrant may not seize a person inside their home, or effect a seizure by ordering a person inside a home to come to the door. See United States v. Maez, 872 F.2d 1444, 1446 (10th Cir.1989) (holding a seizure to have been a violation of the Fourth Amendment when police surrounded an individual’s house for three hours planning an arrest and ordering the individual out of his home under drawn firearms believing he was a suspect in a bank robbery); United States v. Flowers, 336 F.3d 1222, 1225-27 (10th Cir.2003) (holding that an unconstitutional seizure occurred when police discovered that a suspect illegally sold alcohol from his home and that ordering him to open the door to be arrested inside his home was not a voluntary act by the defendant). In United States v. Reeves, police officers suspected an individual of unlawfully carrying weapons. See 524 F.3d at 1163. Without an arrest or search warrant, officers had convened at the suspect’s motel and made several calls from the front office to the motel room, which were unanswered. After assessing the situation, officers proceeded knocking on the suspect’s door and windows. See United States v. Reeves, 524 F.3d at 1164. After nearly twenty-five minutes, the suspect met the officers at the door and was promptly arrested. See United States v. Reeves, 524 F.3d at 1164. The Tenth Circuit, in United States v. Reeves, held that the presence of police, the telephone calls, and the knocking at door constituted a seizure inside the home, because the suspect would not likely have thought that he was free to ignore the officers knocking and yelling into the room. See 524 F.3d at 1168. Although it recognized that the officers in United States v. Reeves did not issue any direct commands for the suspect to open the door or come out, the Tenth Circuit reasoned:

[T]he officers’ actions were effectively a command to open the door. The record demonstrates that three officers pounded on Reeves’ door and window while yelling and loudly identifying themselves as police officers. They continued this conduct consistently for at least twenty minutes. This encounter began between 2:30 and 3:00 in the morning, a time which must be taken into consideration when analyzing the coerciveness of the encounter.

United States v. Reeves, 524 F.3d at 116— 69.

The Court, in Smith v. Kenny, 678 F.Supp.2d 1124 (D.N.M.2009) (Browning, J.), held that citizens could be seized when an officer issues a command, via cellular phone, to someone to leave his or her home and surrender to officers waiting outside. See 678 F.Supp.2d at 1173 (holding that a seizure could occur under these facts, but not deciding this issue because of factual disputes). The Court determined that the late hour in addition to the direct order to exit the home and surrender to police custody “is a seizure because a reasonable person would not fee free to ignore the order.” 678 F.Supp.2d at 1173. The Court found that the means of communication are not the focus of the Fourth Amendment analysis and that it is the arrested person’s location that determines whether an arrest occurs in a home. See Smith v. Kenny, 678 F.Supp.2d at 1174.

In United States v. Reeves, the Tenth Circuit cited with approval a case from the United States Court of Appeals for the Ninth Circuit. In that case, United States v. Al-Azzawy, 784 F.2d 890 (9th Cir.1985), the Ninth Circuit held that a defendant was seized inside his home for purposes of the Fourth Amendment when officers surrounded his trailer and used a bullhorn to order the suspect to exit his home and drop to his knees. See United States v. Al-Azzawy, 784 F.2d at 893. The Ninth Circuit had found that the defendant/appellee “was not free to leave, his freedom of movement was totally restricted, and the officers’ show of force and authority was overwhelming. Any reasonable person would have believed he was under arrest in these circumstances.” United States v. Al-Azzawy, 784 F.2d at 893.

The Tenth Circuit in United States v. Reeves also cited with approval United States v. Morgan, 743 F.2d 1158 (6th Cir. 1984). In United States v. Morgan, the United States Court of Appeals for the Sixth Circuit held that a seizure occurred when police surrounded a defendant’s home and demanded that he come outside:

[T]he record provides ample proof that, as a practical matter, Morgan was under arrest as soon as the police surrounded the Morgan home, and therefore, the arrest violated Payton because no warrant had been secured. The police show of force and authority was such that a reasonable person would have believed he was not free to leave.

743 F.2d at 1163-64.

In United States v. Johnson, 626 F.2d 753 (9th Cir.1980), federal agents approached the home of a suspect to investigate the theft of a treasury check. See 626 F.2d at 755. The suspect’s seizure occurred when the suspect was inside the house and the officers were outside with guns drawn. See United States v. Johnson, 626 F.2d at 757. The Ninth Circuit held that this arrest was unconstitutional, because “it is the location of the arrested person and not the arresting agents that determines whether an arrest occurs within a home.” United States v. Johnson, 626 F.2d at 757. The Ninth Circuit reasoned that to hold otherwise would allow officers to “avoid illegal ‘entry1 into a home simply by remaining outside the doorway and controlling the movements of suspects within through the use of weapons that greatly extend the ‘reach’ of the arresting officers.” 626 F.2d at 757.

The Supreme Court has found “a person has been seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). However, “in situations where the individual could not or would not want to leave, even absent police presence, the appropriate inquiry is whether a reasonable person would feel free to decline the officer’s requests.” Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Regarding circumstances where police officers, without warrant or exigent circumstances and acting under the color of authority, order the occupants of an residence to the door to be seized, the Tenth Circuit has stated:

In situations where the individual could not or would not wish to leave, even absent the police presence, “the appropriate inquiry is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 115 L.Ed.2d 389 ... (1991). Circumstances that indicate a seizure include: “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” [United States v.] Mendenhall, 446 U.S. [544,] 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 ... [(1980)]; [United States v.] Maez, 872 F.2d [1444,] 1450 [ (1989) ].

United States v. Reeves, 524 F.3d at 1167.

b. Requirements for an Arrest.

Probable cause must support an arrest, “characterized by highly intrusive or lengthy search or detention.” Oliver v. Woods, 209 F.3d 1179, 1185 (10th Cir.2000). See Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). “Probable cause to arrest exists only when the ‘facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.’ ” United States v. Valenzuela, 365 F.3d 892, 896-97 (10th Cir.2004) (quoting United States v. Edwards, 632 F.3d 633, 639 (10th Cir.2001)) (citing Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959)). Although “[p]robable cause does not require facts sufficient for a finding of guilt ..., it does require more than mere suspicion.” United States v. Morris, 247 F.3d 1080, 1088 (10th Cir.2001) (internal quotation marks omitted). The Supreme Court has made the following distinction between reasonable suspicion, which is sufficient for an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and probable cause, which is required before an arrest can be made:

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.

Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

Probable cause is measured against an objective standard. See Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). “The subjective belief of an individual officer as to whether there was probable cause for making an arrest is not dispositive.” United States v. Valenzuela, 365 F.3d at 896-97 (citing Florida v. Royer, 460 U.S. 491, 507, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); United States, v. Treto-Haro, 287 F.3d 1000, 1006 (10th Cir. 2002)). Thus, the primary consideration is “whether a reasonable officer would have believed that probable cause existed to arrest the defendant based on the information possessed by the arresting officer.” Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir.2002) (alterations omitted) (internal quotation marks omitted).

2. Requirements for Fourth Amendment Searches.

“[T]he Fourth Amendment protects people, not places,” and the Supreme Court has vigorously asserted that the proper analysis under the Fourth Amendment is not whether the place searched is a “constitutionally protected area.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The proper inquiry is whether the defendant had an expectation of privacy in the place searched and whether that expectation was objectively reasonable. See Katz v. United States, 389 U.S. at 351, 88 S.Ct. 507 (“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”); Katz v. United States, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring) (“My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ”).

There is no doubt, however, that a citizen has a reasonable expectation of privacy, and a particularly strong one, in his own home. The “chief evil” from which the Fourth Amendment protects citizens is unwanted police entry into the home, and the “principal protection” is “the Fourth Amendment’s warrant requirement.” United States v. Thompson, 524 F.3d at 1132. See Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (“ ‘At the very core’ of the Fourth Amendment ‘stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ ”) (quoting Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961)); Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (“[S]earches and seizures inside a home without a warrant are presumptively unreasonable.”).

a. Warrantless Searches: Limited Fourth-Amendment Exceptions.

Not all searches require a warrant. The Supreme Court has instructed that, when assessing the reasonableness of a warrantless search, a court must begin “with the basic rule that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ ” Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 1716, 173 L.Ed.2d 485 (2009) (citing Katz v. United States, 389 U.S. at 357, 88 S.Ct. 507). See Payton v. New York, 445 U.S. at 586, 100 S.Ct. 1371. As the Tenth Circuit stated in United States v. Cos, 498 F.3d 1115 (10th Cir. 2007): “A warrantless search of a suspect’s home is per se unreasonable under the Fourth Amendment unless the government can show that it falls within 'one of a carefully defined set of exceptions.’ ” 498 F.3d at 1123 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 474, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). See United States v. Thompson, 524 F.3d at 1132.

“One exception to the warrant requirement is when police reasonably believe an emergency exists that makes it infeasible to obtain a warrant.” United States v. Gambino-Zavala, 539 F.3d 1221, 1225 (10th Cir.2008). “The government bears the burden of proving the exigency exception to the warrant requirement applies.” United States v. Najar, 451 F.3d 710, 717 (10th Cir.2006) (citing United States v. Wicks, 995 F.2d 964, 970 (10th Cir.1993)). “That burden is especially heavy when the exception must justify the warrantless entry of a home.” United States v. Najar, 451 F.3d at 717 (citation omitted). Generally, a warrantless entry under the exigent-circumstances exception requires probable cause and exigent circumstances. See Kirk v. Louisiana, 536 U.S. 635, 638, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002); Manzanares v. Higdon, 575 F.3d 1135, 1142-43 (10th Cir.2009). The Tenth Circuit, however, appears to have recognized a subset of exigent-circumstances cases — what the Court refers to as “emergency-aid” cases — that do not require probable cause. See United States v. Najar, No. 03-0735, 2004 WL 3426123, at *6 (D.N.M. Sept. 3, 2004) (Browning, J.) (“For probable cause in the usual [evidence-of-crime] sense not to be needed, the police must be responding to a true emergency rather than a crime, and the police must reasonably believe a person inside needs immediate assistance, and entry is needed to protect or preserve life, or to avoid serious injury.”) (alteration original), aff'd, 451 F.3d 710 (10th Cir.2006). In the Tenth Circuit’s opinion in United States v. Najar, the Tenth Circuit held that the exigent-circumstances exception to the warrant requirement authorized a warrantless police entry in an emergency-aid situation without a showing of probable cause. In so doing, the Tenth Circuit noted that the Supreme Court in Brigham City, Utah v. Stuart, which was determining “whether the risk of personal danger created exigent circumstances,” did not “require probable cause in this type of exigent circumstances.” United States v. Najar, 451 F.3d at 718 (emphasis added).

In such emergency-aid situations, the Tenth Circuit employs a two-pronged test to determine whether emergency circumstances justify a warrantless entry into a home, which examines: “whether (1) the officers have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others, and (2) the manner and scope of the search is reasonable.” United States v. Najar, 451 F.3d at 717-18. A court is “guided by the realities of the situation presented by the record,” and should consider the facts from the viewpoint of “prudent, cautious, and trained officers.” United States v. Porter, 594 F.3d 1251, 1258 (10th Cir.2010) (citation omitted). “Reasonable belief does not require absolute certainty; the standard is more lenient than the probable cause standard.” United States v. Porter, 594 F.3d at 1258 (citation omitted). “Officers do not need ironclad proof of ‘a likely serious, life-threatening’ injury to invoke the emergency aid exception.” United States v. Porter, 594 F.3d at 1258 (citation omitted). A court must also, however, remember that officers cannot create their own exigent circumstances to justify a warrantless entry. See United States v. Flowers, 386 F.3d at 1230. In the limited circumstances where the risk of danger to the officers or others gives rise to the exigent circumstance, the court does not require a separate showing of probable cause. See United States v. Najar, 451 F.3d at 718.

3. Fourth-Amendment Protections and the “Threshold” of a Home.

A warrantless arrest of an individual in a public place upon probable cause does not violate the Fourth Amendment. See United States v. Watson, 423 U.S. 411, 418-19, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). The Supreme Court has also held that when a warrantless arrest is in initiated at the doorway of a home and the individual retreats into the home, the warrantless arrest is valid. See United States v. Santana, 427 U.S. 38, 41-42, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). The open doorway in United States v. Santana was considered a “public” place for purposes of the Fourth Amendment. 427 U.S. at 42, 96 S.Ct. 2406. When an individual is “not merely visible to the public but [is] exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house” a warrantless arrest is permissible. United States v. Santana, 427 U.S. at 42, 96 S.Ct. 2406 (citing Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 68 L.Ed. 898 (1924)).

The Tenth Circuit, in McKinnon v. Carr, 103 F.3d 934 (10th Cir.1996), upheld a warrantless arrest when police officers knocked on an individual’s door, the individual voluntarily answered the door, and arrested him in the threshold of his home. See 103 F.3d at 935-36. The Tenth Circuit noted that the district court did not err in holding that the arrest at the doorway was not invalid. See McKinnon v. Carr, 103 F.3d at 935-36.

When an individual does not voluntarily come to the door, however, the Tenth Circuit has distinguished McKinnon v. Carr. In United States v. Flowers, 336 F.3d 1222, the defendant — Flowers—was selling wine out of his home, and exposed his hand and arm through a panel in the front door to the officers to sell them a bottle. See 336 F.3d at 1224. The officers then ordered Flowers to open the door, he did, and they took Flowers into custody. See United States v. Flowers, 336 F.3d at 1224. Looking at these facts, the Tenth Circuit distinguished McKinnon v. Carr and United States v. Santana, finding that “Flowers was not in a place sufficiently public that he had no legitimate expectation of privacy.” United States v. Flowers, 336 F.3d at 1228. In United States v. Reeves, the Tenth Circuit reiterated that “opening the door to one’s home is not voluntary if ordered to do so under color of authority” and that opening the door under police orders does not diminish an individual’s legitimate expectations of privacy such that a warrantless arrest is permissible. 524 F.3d at 1167, 1169.

ANALYSIS

The Court will grant Wilson’s Motion for Summary Judgment in part. Jara and Vazquez violated her Fourth Amendment rights when they seized her person in her home. The Court cannot reasonably determine as a matter of law, however, that the Defendants violated Wilson’s Fourth Amendment rights when they reached across the threshold, or when they arrested her for resisting arrest and obstruction of justice. The Court concludes that factual disputes, and rule 56’s requirement that all inferences and doubts be resolved in favor of the non-moving party, counsel that the Court should deny Wilson’s Motion for Summary Judgment on all other claims alleged in Count III of the Complaint. The Court also finds that New Mexico’s Family Violence Protection Act does not preclude civil liability under 42 U.S.C. § 1983.

I. THE COURT WILL GRANT WIL- . SON’S MOTION FOR SUMMARY JUDGMENT IN PART, BECAUSE THE DEFENDANTS VIOLATED WILSON’S FOURTH-AMENDMENT RIGHTS WHEN THEY SEIZED HER PERSON.

Jara and Vazquez’ order to “go get your son” constituted a seizure in violation of the Fourth Amendment. The Court cannot, however, determine on the facts presented whether breaching the threshold of the apartment to reach T. Chabot constituted a search of Wilson’s home in violation of the Fourth Amendment. Moreover, the Court cannot reasonably hold, as a matter of law, that Jara and Vazquez lacked probable cause to arrest Wilson.

A. THE ORDER TO “GO GET YOUR SON” CONSTITUTED A SEIZURE IN VIOLATION OF THE FOURTH AMENDMENT.

A Fourth Amendment seizure may take place even when a police officer does not physically restrain the citizen, or even make physical contact with him or her. See Florida v. Bostick, 501 U.S. at 436, 111 S.Ct. 2382; United States v. Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870. In fact, the citizen need not even see the officer for the seizure to occur. See United States v. Maez, 872 F.2d at 1446 (holding that a family was seized in their home where officers stood outside and ordered them out of the home over loudspeakers); United States v. Reeves, 524 F.3d at 116—69. See also United States v. Al-Azzawy, 784 F.2d at 893; United States v. Morgan, 743 F.2d at 1163-64. In Smith v. Kenny, the Court held that when an order to leave the home and surrender to police is communicated via a cellular phone, citizens are seized in