Dorato v. Smith (108 F. Supp. 3d 1064, 2015)

United States District Court for the District of New Mexico 2015-05-26

The Public Health and Welfare

Citations

Full opinion text

MEMORANDUM OPINION AND AMENDED ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant Martin Smith’s Motion for Summary Judgment Requesting Dismissal of Plaintiffs’ Complaint on Qualified Immunity and Other Grounds, and Memorandum in Support, filed May 12, 2014 (Doc. ll)(“Motion”). The Court held a hearing on November 24, 2014. The primary issues are: (i) whether the Court should deny the Motion or permit the Plaintiffs to conduct additional discovery pursuant to rule 56(d) of the Federal Rules of Civil Procedure; (ii) whether Plaintiffs Mary Jobe, D.T., J.T., and I.M. have standing to assert their loss of consortium claims; (iii) whether the Plaintiffs have standing to assert a seizure claim over the black Sports Utility Vehicle (“SUV”) that Daniel Tillison was driving when Defendant Martin Smith shot him; (iv) whether Smith seized Tillison before shooting him; (v) whether Smith had probable cause to arrest Tillison; (vi) whether Smith violated Tillison’s rights under the Fourth Amendment to the Constitution of the United States of America by using excessive force; (vii) whether Tillison’s rights were clearly established at the time; and (viii) whether the New Mexico Legislature waived Smith’s immunity under the New Mexico Tort Claims Act, N.M. Stat. Ann. § 41-4-1 (“NMTCA”).

Because additional discovery is not necessary for the Court to decide the Motion, the Court will deny the Plaintiffs’ rule 56(d) request. Jobe, D.T., J.T., and I.M. allege only state law claims, and, as such, they have standing. Because it is reasonable to infer that Tillison had a possessory interest in the SUV, the Plaintiffs have standing to argue that Smith seized the SUV. Smith did not, however, seize Tilli-son or the SUV before shooting Tillison, because Tillison never submitted to Smith’s authority. Additionally, Smith had probable cause to arrest Tillison. Smith used excessive force in shooting Til-lison, because it is disputed whether he could have believed that Tillison posed a threat of serious bodily harm to himself or to others. At the time of the shooting, it was clearly established that Smith could not use deadly force without a reasonable belief that Tillison posed a threat of serious bodily injury to himself or to others. Finally, because Smith had probable cause to arrest Tillison, the New Mexico Legislature has not waived his immunity under the NMTCA as far as it concerns the Plaintiffs’ false arrest and false imprisonment claims, but the Legislature has waived his immunity as it relates to the Plaintiffs’ assault and battery claims. Accordingly, the Court will grant the Motion in part and deny it in part. The Court will grant the Motion and dismiss Count I of the Complaint for Civil Rights Violations, filed in state court on March 14, 2014, filed in federal court on April 18, 2014 (Doc. 1-l)(“Complaint”), which concerns unlawful seizure. The Court will also dismiss the Plaintiffs’ false arrest and false imprisonment claims in Count III of the Complaint. The Court will deny Smith’s remaining requests in the Motion, including Smith’s request for the Court to dismiss Count II — which concerns excessive force — and to dismiss the Plaintiffs’ assault and battery claims in Count III.

FACTUAL BACKGROUND

“On or about March 19, 2012, Officer Martin Smith was wearing his uniform [and his] badge of office, and [he was] patrolling within his marked police vehicle during a day shift in the southeast area command of Albuquerque, NM.” Motion ¶ 1, at 1-2 (setting forth this fact). See Affidavit of Martin Smith ¶ 2, at 1, filed May 12, 2014 (Doc. ll-l)(“Smith Aff.”). At approximately 1:08 p.m., Officer Smith was dispatched to a call which had been holding. The dispatch éntry from the call stated as follows:

31 [SUSPICIOUS] '. MALE PARKED. IN FRT [FRONT] NEAR COMM [COMMUNITY] MAILBOXES — SUBJ [SUBJECT] IN A BLK [BLACK] MITS [MITSUBISHI] MONTERO 568PTX [LICENSE PLATE # ] WAS TRYING TO SELL SOUND SYSTEM — POSS [POSSIBLY] 27-6 [STOLEN] ITEMS— REQTNG [REQUESTING] 34’S [OFFICERS] CHECK ON SUBJ [SUBJECT]

Motion ¶ 2, at 2 (setting forth this fact)(quoting Computer Aided Dispatch Detailed History of Police Call # P120790534 as of 4/9/2012 10:03:06 at 1, filed May 12, 2014 (Doc. ll-2)(“March 19, 2012, CAD’OXalterations in Motion but not in source). See Smith Aff. ¶ 3, at 1; March 19, 2012, CAD at l. “According to the Computer Aided Dispatch (‘CAD’), Officer Smith was the only officer initially dispatched by the dispatcher to respond to this call.” Motion ¶ 3, at 2 (setting forth this fact). See Smith Aff. ¶ 4, at 1; March 19, 2012, CAD at l.

“After Officer Smith acknowledged that he was going to take the call, the dispatcher relayed to Officer Smith that there was some history with the suspect vehicle and she indicated that she would send information to him.” Motion ¶4, at 2 (setting forth this fact). See Smith Aff. ¶ 5, at 2; Real Time Recording of Dispatch Call, at 2:54-3:15, hand delivered to the Court on May 13, 2014, filed May 12, 2014 (Doc. 12)(“Real Time Recording”); Dispatch Recording Transcript at 2:16-20 (transcribed Apr. 21, 2014), filed May 12, 2014 (Doc. 11-3)(“Dispatch Tr.”); Response at 4 (not disputing this fact). “Officer Smith was then sent a CAD for call # P120730078 which was a BOLO (Be on the Lookout) for a black 2005 Mitsubishi Montero Sport with a New Mexico license plate of 568PTX which was reported stolen.” Motion ¶ 5, at 2 (setting forth this fact). See Smith Aff. ¶ 6, at 2; Computer Aided Dispatch Detañed History of Police Call # P120730078 as of 4/9/2012 10:05:23 at 1, filed May 12, 2014 (Doc. 11-4)(“March 13, 2012, CAD”).

The registered owner of the 2005 Mitsubishi Montero reported it stolen on March 13, 2015. See Motion ¶ 6, at 2 (setting forth unmodified fact); March 13, 2012, CAD at l.

The vehicle was not listed in [the National Crime Information Center, (“NCIC”),] as being stolen; however, there was no information that the vehicle had been recovered which led Officer Smith to believe that it still had not been located and returned to its owner so Officer Smith advised the dispatcher to alert other officers about this vehicle so that they could search for it as well.

Motion ¶ 7, at 3 (setting forth this fact). See Smith Aff. ¶ 7, at 2; Real Time Recording at 5:02-5:19; Dispatch Tr. at 3:11— 17. “The dispatcher then broadcast over the air that the vehicle was last seen in the area of 8201 Marquette northeast; she gave a description of the vehicle and advised that it was reported stolen but was not in the system and it was unknown if it was recovered.” Motion ¶ 8, at 3 (setting forth this fact). See Smith Aff. ¶ 8, at 2; Real Time Recording at 5:21-6:01; Dispatch Tr. at 3:18-4:5.

“As Officer Smith approached the vicinity of Texas and Marquette, he began looking for a vehicle matching the description of the call since the dispatcher relayed that the vehicle was in the area of 8201 Marquette northeast near some community mailboxes.” Motion ¶ 9, at 3 (setting forth this fact). See Smith Aff. ¶ 9, at 2. “As Officer Smith drove westbound on Marquette and approached Texas, he looked around this intersection for the vehicle and did not see it by any community mailboxes so he continued onto westbound Marquette.” Motion ¶ 10, at 3 (setting forth this fact). See Smith Aff. ¶ 10, at 2.

As Officer Smith continued driving westbound on Marquette, just west of Texas, he drove next to a small parking lot where he saw some community mailboxes, and as he was driving he just happened to see a vehicle which matched the description of the suspected stolen vehicle. He also observed the driver moving around inside of the vehicle.

Motion ¶ 11, at 3 (setting forth this fact). See Smith Aff. ¶¶ 10-12, at 2-3; Diagram of Parking Lot, filed May 12, 2014 (Doc. ll-l)(Exhibit A1 to the Smith Aff.)

Because Officer Smith had already partially driven by the parking lot as he was heading westbound, on Marquette, the driver of the Mitsubishi was in a position where he could have visibly seen Officer Smith drive by. Consequently, Officer Smith made the decision to turn into the parking lot and parked to the rear of the vehicle at a semi angle so as to block the vehicle to attempt to prevent the driver from fleeing the area.

Motion ¶ 12, at 3-4 (setting forth this fact). See Smith Aff. ¶ 13, at 3; Diagram of Parking Lot, filed May 12, 2014 (Doc. 11-l)(Exbibit A2 to Smith Aff.)(“Smith’s Diagram of the Parking Lot”).

Officer Smith had presumed that there would be other officers nearby in the area to assist since the dispatcher had relayed to other officers that the suspected stolen vehicle was in the area of 8201 Marquette so he informed dispatch that he would be out with the vehicle and that it was occupied.

Motion ¶ 13, at 4 (setting forth this fact). See Smith Aff. ¶ 15, at 3; Real Time Recording at 9:44-9:48; Dispatch Tr. at SAT-IS. “According to the CAD and the radio transmissions, the dispatcher did not actually dispatch another officer [A-325] to this location until after Officer Smith had already called out that he was with the vehicle and reported that it was occupied.” Motion ¶ 14, at 4 (setting forth this fact). See March 19, 2012, CAD at 1; Real Time Recording at 9:53-9:58; Dispatch Tr. at 5:20-22. “After Officer Smith relayed to the dispatcher that he was with the suspect vehicle, he exited his marked police vehicle and approached the” driver’s side of the SUV. Motion ¶ 15, at 4 (setting forth unmodified fact). See Smith Aff. ¶ 17, at 4; Smith’s Diagram of the Parking Lot at l.

When Officer Smith approached the car, he had his firearm drawn in the low ready position since he was investigating a felony crime given that the vehicle in question had been reported as stolen. The vehicle was also located in a high crime area. The initial call also reported that there was a male who was trying to sell a sound system which was possibly stolen. It also concerned Officer Smith that the driver was moving around inside of the vehicle.

Motion ¶ 16, at 4-5 (setting forth this fact). See Smith Aff. ¶ 19, at 4; March 19, 2012, CAD at 1; Real Time Recording at 5:31-6:01; Dispatch Tr. at 3:22-5:5. “Officer Smith identified himself as a police officer by announcing ‘Albuquerque Police’ and he then said: Let me see your hands; put your hands out the window.” Motion ¶ 17, at 5 (setting forth this fact). See Smith Aff. ¶ 20, at 4; Response at 6 (not disputing this fact). The driver said something to Smith, but Smith does not recall what he said. See Response at 6 (setting forth this fact); Smith Aff. ¶ 20, at 4.

“Officer Smith told the driver to put his hands out of the window so that he could see both hands in order to ensure that he was not holding a weapon.” Motion ¶ 18, at 5 (setting forth unmodified fact). See Smith Aff. ¶ 21, at 4.

Instead of obeying Officer Smith’s commands, the driver of the vehicle continued moving around inside of the SUV and at one point looked back at Officer Smith and then reached down and then reached into the back of the vehicle. The driver’s actions in disobeying Officer Smith’s commands and in moving around the vehicle in this manner caused Officer Smith to have extreme concern that he was reaching for a weapon.

Motion ¶ 19, at 5 (setting forth this fact). See Smith Aff. ¶ 22, at 4-5. “Based upon what Officer Smith had observed, he yelled at the driver: ‘Let me see your hands, let me see your hands. Put them out the window now/ The driver did not comply with these directives.” Motion ¶ 20, at 5 (setting forth this fact). See Smith Aff. ¶ 23, at 5.

At one point as the driver was moving around, the driver reached with his left hand and started opening the door so Officer Smith immediately pushed the door frame closed because he was concerned that the driver was going to come out of the vehicle with a weapon since the driver was moving and reaching around inside the vehicle and disobeying Officer Smith’s commands to show his hands.

Motion ¶ 21, at 5 (setting forth this fact). See Smith Aff. ¶ 24, at 5.

“After Officer Smith pushed the door closed, the driver ... put the vehicle into reverse so Officer Smith moved out of the way to avoid getting hit since he was standing just a few feet away from the driver’s side of the SUV.” Motion ¶ 22. At 6 (setting forth unmodified fact). See Smith Aff. ¶26, at 5. “As the driver reversed the vehicle, the driver ... slammed the SUV into Officer Smith’s marked patrol car .... His actions in driving in this manner led Officer Smith to believe that he was attempting to flee the area.” Motion ¶ 23, at 6 (setting forth unmodified fact). See Smith Aff. ¶ 26, at 5; Diagram of Parking Lot During the Incident, filed May 12, 2014 (Doc. ll-l)(Exhibit A4 to Smith Aff.)(“Smith’s Diagram of the Parking Lot During the Incident”). “When Officer Smith was attempting to move out of the way of the vehicle’s path, he started heading towards his vehi-cle____” Motion ¶24, at 6 (setting forth unmodified fact). See Smith Aff. ¶ 28, at 6; Smith’s Diagram of the Parking Lot During the Incident at l.

“Officer Smith fired a shot into the left rear tire of the Mitsubishi in an attempt to disable the vehicle....” Motion ¶25, at 6 (setting forth unmodified fact). See Smith Aff. ¶ 29, at 6; Diagram of Parking Lot After the Incident, filed May 12, 2014 (Doc. ll-l)(Exhibit A5 to ^ Smith Af£-)( Smith s Diagram of the Parking Lot After the' Incident”). “The shot to the tire did not disable the vehicle____[Smith] then observed the driver move the vehicle forward.... ” Motion ¶ 27, at 7 (setting forth unmodified fact). See Smith Aff. ¶ 30, at 6. “After the vehicle had moved forward, Officer Smith saw the vehicle reversing ... so he moved further west and to the north to back away from the vehicle .... ” Motion ¶ 28, at 7, (setting forth unmodified fact). See Smith Aff. ¶ 32, at 6-7; Smith’s Diagram of the Parking Lot After the Incident at l. While the SUV was in motion, “Officer Smith saw that the driver had his left arm extended holding onto the steering wheel while he moved his right hand over his left arm.” Motion ¶ 29, at 7. See Smith Aff. ¶ 33, at 7. “The driver had a black object in his right hand which he pointed at Officer Smith through the open window.” Motion ¶ 30, at 7 (setting forth this fact). See Smith Aff. ¶ 34, at 7. “According to Officer Smith, the driver pointed this object in a ‘gangster style’ manner of aiming a gun.” Motion ¶ 31, at 7 (setting forth this fact). See Smith Aff. ¶ 34, at 7.

Given the following: (1) Officer Smith was dispatched to investigate a felony crime; (2) Officer Smith observed the driver moving around in the vehicle reaching down and into the back of the vehicle; (3) the driver disobeyed Officer Smith’s commands to show his hands; ... (5) the driver deliberately struck Officer Smith’s police vehicle ... in an effort to flee; (6) the driver continued to move the vehicle forward and back even after Officer Smith shot the rear tire; (7) the manner in which driver held the black object in his right hand and pointed it at Officer Smith through the open window, Officer Smith believed this black object was a gun so he fired a round at him.

Response at 7-8 (setting forth unmodified fact). See Smith Aff. ¶ 35, at 7. Later investigation revealed that the object was a cellular telephone. See March 26, 2012, Interview at 6:2-5 (Smith).

“After firing the round, Officer Smith observed the driver fall back into his seat as the SUV continued reversing and pushing the truck over until it was hung up on the bumper and then came to a final rest.” Motion ¶ 33, at 8 (setting forth this fact). See Smith Aff. ¶ 38, at 8; Response at 8 (not disputing this fact). “Detective Michael Kleinfeld was dispatched as the lead criminalistics detective to process and document the scene of the shooting.” Motion ¶ 34, at 8 (setting forth this fact). See Affidavit of Michael Kleinfeld ¶3, at 1, filed May 12, 2014 (Doc. ll-6)(“Kleinfeld Aff.”). “As part of his investigation, Detective Kleinfeld prepared diagrams labeled Al, A2, and A3 to Detective Klein-feld’s affidavit.” Motion ¶ 35, at 8 (setting forth this fact). See Kleinfeld Aff. ¶¶ 5, 6, & 8, at 2; Overhead Diagram of Apartments and Parking Lot, filed May 12, 2014 (Doc. ll-6)(Exhibit Al to Kleinfeld Afif.)(“Kleinfeld’s Overhead Diagram of Apartments and Parking Lot”); Diagram of Parking Lot During at Beginning of the Encounter, filed May 12, 2014 (Doc. 11-6)(Exhibit A2 to Kleinfeld Aff.)(“Klein-feld’s Diagram of Parking Lot During Initial Encounter”); Diagram of Parking Lot, filed May 12, 2014 (Doc. ll-6)(Exhibit A3 to Kleinfeld Aff.)(“Kleinfeld’s Diagram of Parking Lot After the Incident”). “The diagram marked as Exhibit Al is a depiction of the overall overhead area of Pine Park Apartments in relation to where these apartments are situated on Marquette in between Texas and Tennessee streets. This diagram is not to scale.” Motion ¶ 36, at 8 (setting forth this fact). See Kleinfeld Aff. ¶ 5, at 2; Kleinfeld’s Overhead Diagram of Apartments and Parking Lot at l.

The diagram marked Exhibit A2[, Klein-feld’s Diagram of Parking Lot During Initial Encounter,] is a depiction of the overhead view of the parking lot area located on the south side of the apartment building. The vehicles depicted in the parking lot are general representations of where vehicles were parked in parking spaces at the time Officer Smith first arrived on scene. This' diagram is not to scale.

Motion ¶ 37, at 8-9 (setting forth this fact). See Kleinfeld Aff. ¶6, at 2; Kleinfeld’s Diagram of Parking Lot During Initial Encounter at l.

The diagram marked Exhibit A3[, Klein-feld’s Diagram of Parking Lot After the Incident,] is a depiction of the overhead view of the parking lot area located on the south side of the apartment building which documents the final resting place of the black Mitsubishi SUV, Officer Smith’s vehicle (Nil), a 2008 Dodge pickup truck which was parked just east of the black Mitsubishi, the position of Daniel Tillison’s body after he was removed from the Mitsubishi SUV and attended to by rescue personnel, the position of Officer George Trujillo’s police vehicle when he first pulled up on scene after the shooting, physical evidence located on scene, and a depiction of an estimation of where Officer Smith was positioned when he fired shots. This diagram is not to scale.

Motion ¶ 38, at 9 (setting forth this fact). See Kleinfeld Aff. ¶ 8, at 2; Kleinfeld’s Diagram of Parking Lot After the Incident at l.

“Officer Smith.has indicated on Exhibits A5, A6, and A7. to his affidavit of where he believes his approximate position was when he fired the shot a decedent Daniel Tillison.” Motion ¶ 39, at 9 (setting forth this fact). See Smith Aff. ¶¶ 36-37, at 7-8; Smith’s Diagram of the Parking Lot After the Incident at 1; Picture of Parking Lot from Smith’s Shooting Position Facing the SUV, filed May 12, 2014 (Doc. ll-l)(Exhibit A6 to Smith Aff.)(“Smith’s Picture From His Shooting Position”); Picture of Parking Lot from behind the SUV’s Open Door, filed May 12, 2014 (Doc. ll-l)(Exhibit A7 to Smith Aff.); Response at 8 (not disputing this fact). “The photographs labeled as Exhibit A8, Exhibit A9, Exhibit A10, Exhibit All, and Exhibit A12 [to Smith’s affidavit] depict damage to the Mitsubishi SUV, Officer Smith’s vehicle and to the silver 2008 Dodge pickup truck which was caused by the driver of the Mitsubishi SUV.” Motion ¶ 40, at 9 (setting forth this fact). See Kleinfeld Aff. ¶¶ 5, 6, & 8, at 2; Picture of Rear Right Tire of Vehicle, filed May 12, 2014 (Doc. ll-6)(Ex-híbit A8 to Kleinfeld Aff.); Picture of Patrol Car’s Front and SUV’s Back, filed May 12, 2014 (Doc. ll-6)(Exhibit A9 to Kleinfeld Aff.); Pictures of Front Left Side of the SUV, filed May 12, 2014 (Doc. ll-6)(Exhibit A10 to Kleinfeld Aff.)(“Kle-infeld’s Pictures of the Front Left Side of the SUV”); Pictures of the Trucks Rear Left Side, filed May 12, 2014 (Doc. 11-6)(Exhibit All to Kleinfeld Aff.); Pictures of the Truck’s Back, filed May 12, 2014 (Doc. ll-6)(Exhibit A12 to Kleinfeld Aff.); Response at 8 (not disputing this fact). “From Detective Kleinfeld’s review of the autopsy report based upon his training and experience as a crime scene investigator, Mr. Tillisoris left arm was up and extended forward as though he was holding onto the steering wheel when he was shot.” Motion ¶ 42, at 10 (setting forth this fact). See Kleinfeld Aff. ¶20, at 4; Portion of Daniel Tillisoris Autopsy Report, filed May 12, 2014 (Doc. 11-6).

PROCEDURAL BACKGROUND

The Plaintiffs filed suit in state Court on March 14, 2014, see Complaint at 1, and the Defendants removed the case to federal court on April 18, 2014, see Notice of Removal, filed April 18, 2014 (Doc. 1). The Plaintiffs allege nine counts. Count I alleges that Smith violated Tillisoris Fourth Amendment right to be free from unreasonable seizure of himself and his black SUV. See Complaint ¶¶ 105-114, at 14-15. Count II alleges that Smith used excessive force in shooting Tillison. See Complaint ¶¶ 115-119, at 15-16. Count III alleges state-law tort claims against Smith, including assault, battery, false arrest, and false imprisonment. See Complaint ¶¶ 120-128, at 16. Count IV alleges that Defendant City of Albuquerque was negligent in hiring, training, supervising, and retaining Smith. See Complaint ¶¶ 129-132, at 17-18. Count V alleges a negligent assault and battery claim against the City of Albuquerque under a responde-at superior theory. See Complaint ¶¶ 133-137, at 18. Count VI alleges loss of consortium for I.M., the child of Plaintiff Mary Jobe, Tillisoris girlfriend/fiancé at the time of his death. See Complaint ¶ 5, at 2; id. ¶¶ 138-143, at 18-19. Counts VII and VIII allege loss of consortium for D.T. and J.T., Jobe and Tillisoris children. See Complaint ¶¶ 4-5, at 2; id. ¶¶ 144-155, at 19-20. Count IX alleges loss of consortium for Jobe. See Complaint ¶¶ 156-161, at 20-21.

1. The Motion.

Smith filed the Motion on May 12, 2014. See Motion at 1. Smith argues that Jobe, D.T., J.T., and I.M. lack standing to bring federal claims on their own behalf and that, if they are bringing federal claims, the Court should dismiss them. See Motion at 10. He also argues that Tillison’s estate lacks standing to assert an unlawful seizure claim for the SUV, because Tillison had no possessory interest in it. See Motion at 10. Smith maintains that a plaintiff must assert his or her own legal rights and cannot rely on third parties’ rights. See Motion at 11 (citing Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). He contends that, to have standing in a 42 U.S.C. § 1983 action, a plaintiff must assert that he or she suffered a constitutional violation, and not that someone else suffered the wrong. See Motion at 11 (citing Archuleta v. McShan, 897 F.2d 495, 497 (10th Cir.1990); Dohaish v. Tooley, 670 F.2d 934, 936 (10th Cir.1982)). Smith argues that the Plaintiffs must show that he deprived their constitutional rights and not third parties’ rights. See Motion at 11 (citing Traujillo v. Board of Cnty. Comm’rs, 768 F.2d 1186, 1190 (10th Cir.1985)).

Smith maintains that the Complaint does not contain any allegations showing that Jobe, D.T., J.T., or I.M. can assert a cause of action on their own behalf. See Motion at 12. He argues that Tillison was the only person involved in the incident. See Motion at 12. Smith also argues that Tillison was not the registered owner of the Mitsubishi Montero that was reported stolen six days before the shooting. See Motion at 12. Smith contends that, because Tillison did not lawfully possess the SUV, he lacked a privacy interest in it and, therefore, has no standing ■ to assert his seizure claim. See Motion at 12 (citing United States v. Worthon, 520 F.3d 1173, 1183 (10th Cir.2008)).

Smith contends that he is entitled to qualified immunity on Counts I and II. See Motion at 12. He asserts that, because he raised the issue of qualified immunity, the record must contain sufficient facts to rebut the presumption that he is entitled to immunity. See Motion at 12-13 (citing Medina v. Cram, 252 F.3d 1124, 1130 (10th Cir.2001)). Smith maintains that he did not seize Tillison until he shot him. See Motion at 14. Smith contends that, “ ‘[u]n-less an officer’s show of authority succeeds in restraining the person, the person has not been seized within the meaning of the Fourth Amendment.’ ” Motion at 14 (quoting Latta v. Keryte, 118 F.3d 693, 698 (10th Cir.1997)). Smith asserts that, when he ordered Tillison to show his hands and put them out the window, Tillison refused to comply with his instructions and attempted to flee. See Motion at 14-15. Smith contends that, even when he shot the SUV’s rear tire, he did not seize Tillison, because the shot did not cause Tillison to stop. See Motion at 15 (citing Bella v. Chamberlain, 24 F.3d 1251, 1256 (10th Cir.1994)).

Smith argues that, even if he seized Tillison, he had reasonable suspicion and probable cause to do so. See Motion at 15. He contends that he received information through the CAD that a male in a black Mitsubishi Montero was possibly attempting to sell a stolen sound system. See Motion at 17. Smith also contends that he had information that the vehicle had been reported stolen and that it was in a high crime area. See Motion at 17 (citing Gallegos v. City of Colorado Springs, 114 F.3d 1024 (10th Cir.1997)). He maintains that, based on the totality of the circumstances, he had reasonable suspicion to stop and detain the SUV’s driver. See Motion at 17.

Smith contends that he acted reasonable in approaching the SUV with his firearm drawn and in the low-ready position as he made contact with the driver. See Motion at 17. He asserts that, because police officers are not required to take unnecessary risks in performing their duties, they may take reasonably necessary steps to protect their personal safety and to maintain the status quo during the course of an investigatory stop. See Motion at 17 (citing United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir.1993)). Smith states that the use of firearms, handcuffs, and other forceful techniques during an investigatory stop does not transform the stop into a custodial arrest, if the circumstances reasonably warrant such measures. See Motion at 17 (citing United States v. Melendez-Garcia, 28 F.3d 1046, 1052 (10th Cir.1994)). He contends that, because he was investigating a felony crime in a high crime area, and because he observed Tillison moving around inside the SUV, Tillison posed an immediate threat that warranted Smith partially blocking the SUV with his patrol vehicle and drawing his firearm. See Motion at 18. Smith asserts that, in Henry v. Storey, 658 F.3d 1235, 1239 (10th Cir.2011), the United States Court of Appeals for the Tenth Circuit held that an officer did not use excessive force by pointing his weapon at a person whom the officer had probable cause to believe stole a vehicle. See Motion at 18. Smith also asserts that, in Thomas v. Durastanti, 607 F.3d 655, 668 (10th Cir.2010), the Tenth Circuit held that a reasonable officer could believe that it was necessary to display weapons when an undercover agent observed the occupants of a vehicle drive away from a high crime area, in a stolen vehicle, and in a reckless manner. See Motion at 18-19.

Smith argues that he had an objectively reasonable basis to seize and arrest Tilli-son. See Motion at 19. Smith contends that the dispatcher told him that the vehicle was stolen and that there was no information that it had been recovered. See' Motion at 19. He also contends that he observed an occupant inside the vehicle. See Motion at 19. Smith maintains that he had probable cause to believe that the vehicle was stolen. See Motion at 19. He argues that, when Tillison backed up the vehicle and nearly hit him with it, and when Tillison crashed the vehicle into Smith’s patrol vehicle and into the truck, there was probable cause to arrest Tillison for a number of crimes, including Aggravated Assault against a Police Officer, Assault against a Police Officer, Attempted Aggravated Assault against a Police Officer, Aggravated Assault, Attempted Aggravated Assault, Assault, Criminal Damage to Property, Resisting and Evading Arrest, and Refusing to Obey. See Motion at 19-20.

Concerning the Plaintiffs’ excessive force claim, Smith asserts that excessive' force is judged from the perspective of a reasonable officer and that the Court should consider a number of factors, including (i) the severity of the crime; (ii) whether the suspect posed an immediate threat to the safety of the officer or others; and (iii) whether the suspect was actively resisting arrest or attempting to evade arrest. See Motion at 20 (citing Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). He asserts that deadly force is justified if a reasonable officer in his position would have probable cause to believe that there was a threat of serious physical harm to himself or to others. See Motion at 20 (citing Sevier v. City of Lawrence, 60 F.3d 695, 699 (10th Cir.1995)). Smith contends that his assessment of danger did not have to be correct, but only reasonable. See Motion at 20-21. .He states that an officer’s conduct preceding the use of force is relevant, because an officer’s own recklessness or deliberate conduct may create the need for the force. See Motion at 21-22. Smith contends that the Tenth Circuit uses a non-exclusive list of factors to assess the threat facing an officer: (i) whether the officer ordered the suspect to drop a weapon and whether the suspect complied; (ii) whether the suspect made any hostile motions with a weapon towards the officer; (iii) the distance separating the officer and the suspect; and (iv) the suspect’s intentions. See Motion at 22 (citing Estate of Larsen ex rel Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th Cir.2008)).

Smith argues that, based on the totality of the circumstances — which include Tilli-son moving around in the vehicle, nearly hitting Smith with the vehicle, moving the vehicle back and forward, and pointing a black object at Smith — his actions in shooting Tillison were objectively reasonable. See Motion at 22-23. Smith contends that a reasonable officer in his position would have had probable cause to believe that Tillison posed a serious threat of physical harm. See Motion at 23. Smith asserts that, even though the vehicle was found to be in reverse after the shooting, the vehicle’s threat was still present, because Tillison could have easily put the vehicle in drive and drove it into Smith within a split second. See Motion at 23 (citing Thomas v. Durastanti, 607 F.3d at 665; Waterman v. Batton, 393 F.3d 471, 479 (4th Cir.2005)).

Smith asserts that his conduct immediately preceding the shooting did not rise to the level of recklessness. See Motion at 24. He contends that he parked his patrol vehicle in a manner that partially blocked the SUV, because he was looking for a stolen vehicle that he saw in the parking lot, and because he could not conceal his presence in the area. See Motion at 24. Smith maintains that he informed the dispatcher where the vehicle had last been seen, even though the dispatcher did not send another officer to assist him until after he parked behind the Mitsubishi. See Motion at 24. Smith states that, as he approached the vehicle, he stayed to its side and that he “did not jump out in front of the car.” Motion at 24. He asserts that he moved into the adjacent parking space as Tillison reversed the SUV and almost hit him. See Motion at 24. Smith argues that Tillison’s deliberate and reckless conduct created the danger. See Motion at 24.

Smith contends that the clearly established law on March 19, 2012, would not have put him on notice that his conduct amounted to a constitutional violation. See Motion at 25. He argues that Thomas v. Durastanti demonstrates that his behavior was reasonable under the totality of the circumstances. See Motion at 25 (citing Thomas v. Durastanti, 607 F.3d at 655). Smith maintains that there was no clearly established law that would have put him on notice that Tillison was seized when he did not submit to Smith’s authority. .See Motion at 26 (citing California v. Hodari D., 499 U.S. 621, 625-26, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)). He also maintains that there was no clearly established law that would have put him on notice that approaching a stolen vehicle, with his weapon drawn in low-ready position, and shooting the vehicle’s tire was unreasonable. See Motion at 26 (citing Henry v. Storey, 658 F.3d at 1239; Bella v. Chamberlain, 24 F.3d at 1256).

Smith argues that the New Mexico Legislature has not waived his immunity under the NMTCA. See Motion at 26. He asserts that § 41-4-12 sets forth specific torts for which law enforcement officers’ immunity is waived. See Motion at 26 (citing N.M. Stat. Ann. § 41-4-12). Smith argues that his immunity has not been waived, because his actions were lawful, and because he had reasonable suspicion and probable cause to detain and arrest Tillison. See Motion at 26-27 (citing Santillo v. N.M. Dep’t of Pub. Safety, 2007-NMCA-159, ¶¶ 12-14, 143 N.M. 84, 173 P.3d 6; Romero v. Sanchez, 1995-NMSC-028, 119 N.M. 690, 895 P.2d 212; Mead v. O’Connor, 1959-NMSC-077, ¶ 4, 66 N.M. 170, 344 P.2d 478).

2. The Response.

The Plaintiffs responded to the Motion on July 9, 2014. See Motion at 1. The Plaintiffs argue that the Smith Aff. contradicts many statements he made in the March 20, 2012, Interview, and in the March 26, 2012, Interview. See Response at 1-2. They contend that Smith had a better recollection of the shooting the day afterwards than two years later. See Response at 2. The Plaintiffs state that Smith drafted the Smith Aff. with counsel’s help and after conferring with other officers to “elaborately compose a story which would benefit them in the litigation of this matter.” Response at 2. The Plaintiffs assert that Smith’s contradictions matter, because they give the Court the ability to sanction Smith for providing false statements, and because they show that the Court should allow the Plaintiffs to conduct discovery. See Response at 2 (citing Chavez v. City of Albuquerque, 402 F.3d 1039 (10th Cir.2005); Conder v. A.L. Williams & Assocs., 739 P.2d 634, 641 n. 1 (Utah Ct.App.1987)). The Plaintiffs argue that Smith’s contradictory statements create credibility issues that a jury, and not a judge, should resolve. See Response at 3 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). They contend that the Supreme Court of the United States of America and the Tenth Circuit have reversed a district court’s granting of summary judgment when the district court relied on affidavits from witnesses whom the nonmovant did not have an opportunity to cross examine. See Response at 3-4 (citing Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 472-74, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Adams v. Campbell Cnty. Sch. Diet, 483 F.2d 1351, 1353 (10th Cir.1973)).

The Plaintiffs argue that summary judgment is inappropriate if more discovery is needed. See Response at 9. They contend that they should have the opportunity to cross examine Smith and to obtain mental-health evaluations about Smith’s disability rating from the Veteran’s Administration (“VA”), because of his post-traumatic stress disorder (“PTSD”). Response at 9. The Plaintiffs assert that, under rule 56(d) of the Federal Rules of Civil Procedure, they should be permitted to conduct discovery. See Response at 10. They contend that, pursuant to rule 56(d), the Court should deny the Motion, defer ruling on it, allow time for discovery, or grant other appropriate relief. See Response at 10.

The Plaintiffs maintain that Jobe, D.T., J.T., and I.M. have standing, because they have brought loss of consortium claims. See Response at 11. They contend that, because D.T. and J.T. are Tillison’s biological children, they are Tillison’s only statutory beneficiaries, and, thus, they have standing to bring claims on behalf of Tilli-son’s estate. See Response at 11. The Plaintiffs maintain that a person’s estate has standing to bring a § 1983 claim on his or her behalf. See Response at 11-12 (citing Berry v. City of Muskogee, 900 F.2d 1489, 1506-07 (10th Cir.1990)). The Plaintiffs also assert that it is disputed whether Tillison was driving a stolen vehicle or whether he had permission to drive the vehicle. See Response at 12.

The Plaintiffs argue that the Supreme Court, the Tenth Circuit, and New Mexico law make clear that a reasonable officer would have known that it was unconstitutional for Smith to shoot Tillison when he posed no threat to Smith or to the public. See Response at 13. They first argue that Smith seized Tillison. See Response at 13. They contend that Smith lacked reasonable suspicion or probable cause to seize Tillison. See Response at 13. The Plaintiffs assert that Smith was dispatched to investigate a suspicious person and that there was no report that anything was stolen, including the vehicle, because the NCIC showed that it was not stolen. See Response at 13. They contend that Smith had no probable cause that Tillison committed a crime, and that Tillison was merely sitting in his car in a parking lot and talking on the telephone, when Smith approached with his gun drawn and began yelling commands at Tillison. See Response at 13. The Plaintiffs assert that Smith’s stop was a felony stop, which is more serious than an investigatory stop, because it involves aggressively extracting a vehicle’s occupant at gunpoint, and handcuffing him or her on the ground. See Response at 13 (citing Albuquerque Police Department Procedural Orders at 2 (dated Nov. 4, 2011), filed July 9, 2014 (Doc. 31-5)(“APD Motor Vehicle SOP”)).

The Plaintiffs argue that, by pulling his patrol car against Tillison’s bumper, Smith’s conduct was excessive in light of what Smith knew at the time of the stop and that Smith escalated the situation before making contact with Tillison. See Response at 14. The Plaintiffs state that, if Smith was so afraid that he needed to conduct a felony stop by blocking Tillison’s vehicle and approach with his gun drawn, he should have called for backup rather than escalating the situation. See Response at 14 (citing Sevier v. City of Lawrence, 60 F.3d at 699-701). They contend that, in Zia Trust Co. ex rel. Causey v. Montoya, the defendant-officer rushed up to a van with his gun drawn and without backup, because the defendant-officer believed that a domestic violence suspect was driving the van. See Response at 14. The Plaintiffs assert that, there, the Tenth Circuit held that the defendant-officer’s use of deadly force was unreasonable when he shot the van’s driver as the driver tried to drive the van at the officer, but it was stuck on a pile of rocks and could only move about one foot. See Response at 14.

The Plaintiffs maintain that Smith seized Tillison when he blocked his vehicle and approached the vehicle with his weapon drawn. See Response at 14-15. They contend that, if a police-citizen encounter exceeds the limits of an investigatory detention, the encounter becomes an arrest for which the officer needs probable cause. See Response at 15 (citing United States v. Rodriguez-Rodriguez, 550 F.3d 1223, 1227 (10th Cir.2008)). The Plaintiffs maintain that, when Smith approached Tillison, he posed no threat to Smith and did not attempt to communicate with Smith. See Response at 15. They contend that the test for determining whether a person is seized is whether, considering all the circumstances, the police’s conduct would have communicated to a reasonable person that he or she was not free to decline the officer’s requests to terminate the encounter. See Response at 16 (citing Lund-strom v. Romero, 616 F.3d 1108, 1119 (10th Cir.2010)). The Plaintiffs contend that, because Tillison did not pose a threat, and because Smith escalated the situation, Smith’s actions were not reasonable to justify Tillison’s seizure, and that Smith’s de facto arrest of Tillison violated his Fourth Amendment rights. See Response at 16.

The Plaintiffs argue that Smith’s reliance on United States v. Albert and United States v. Holt is misplaced, because both cases involve traffic stops, which did not occur here. See Response at 16. They contend that a traffic stop presumably involves a subject first committing a traffic violation, which satisfies the probable cause standard; here, however, Tillison was merely sitting in a parked ear and had allegedly offered to sell stereo equipment, which was later determined to not be stolen. See Response at 16. The Plaintiffs argue that, at most, Smith should have done an investigatory detention, which he did not do. See Response at 16. They contend that Smith’s subjective belief whether there was probable cause is irrelevant, because the test is an objective one. See Response at 17 & n. 2. They also contend that it is irrelevant whether Tilli-son would have been charged with a crime, because the analysis focuses on what Smith knew at the time of the initial seizure. See Response at 17.

The Plaintiffs argue that Smith’s failure to warn Tillison that he intended to use deadly force was presumptively unreasonable. See Response at 17. They assert that the man who was talking with Tillison on the telephone heard Smith yell “show me your hands,” and heard Tillison reply, “why? I didn’t do nothing wrong.” Response at 17 n. 3 (alterations omitted). The Plaintiffs contend that they should be able to cross examine Smith about this statement. See Response at 17. They state that Smith did not give Tillison any reason why he blocked his car, why he pointed a gun at him, or why he ordered him to put his hands up. See Response at 17-18. The Plaintiffs argue that Smith could see Tillison’s hands during various times of the encounter, and that Smith was between five and ten feet away from Tilli-son when he shot him. See Response at 18. They state that Smith did not know what was in Tillison’s right hand and argue that, “[i]f we allow officers to believe that they are justified in shooting someone without any basis that the person is actually armed we are living in a country that no longer acknowledges the foundations upon which the Fourth Amendment was founded.” Response at 18. The Plaintiffs maintain that, when Smith shot Tillison, he was not an immediate threat to Smith or to the public. See Response at 18.

The Plaintiffs contend that, in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694; 85 L.Ed.2d 1 (1985), the Supreme Court held that, if a fleeing suspect does not pose an immediate threat to the officer or to others, the harm of failing to apprehend the suspect does not justify the use of deadly force. See Response at 18. They argue that deadly force is not justified unless, where feasible, a warning is given. See Response at 18 (citing Harris v. Roderick, 126 F.3d 1189, 1201 (9th Cir.1997)). The Plaintiffs argue that, before shooting Tillison, Smith did not warn Tillison that he would use deadly force, even though it was feasible for him to give a warning. See Response at 18. They contend that, while Tillison may have been trying to flee, Stewart’s report shows that Tillison’s vehicle never made any attempt to drive toward Smith. See Response at 18.

The Plaintiffs maintain that Smith’s shooting of Tillison was objectively unreasonable. See Response at 19 (citing Graham v. Connor, 490 U.S. at 397, 109 S.Ct. 1865). They assert that Smith’s subjective and speculative fear about what might occur cannot justify his use of deadly force. See Response at 19 (citing Curley v. Klem, 298 F.3d 271, 280 (3d Cir.2002)). The Plaintiffs contend that Smith killed Tillison either out of an anticipated or accidental response to a PTSD flashback. See Response at 19. They argue that it was unreasonable for Smith to so quickly use deadly force before backup had an opportunity to arrive. See Response at 19. The Plaintiffs contend that Smith was not in immediate danger of being hit and that he did not know what Tillison had in his hand. See Response at 19. They assert that Smith’s only remaining justification for shooting Tillison was that Tillison was trying to leave the parking lot. See Response at 19-20.

The Plaintiffs argue that, in Cordova v. Aragon, 569 F.3d 1183 (10th Cir.2009), the Tenth Circuit held that a motorist’s fleeing from police, without more, is insufficient to justify the use of deadly force. See Response at 20. They argue that, there, the suspect was driving in the wrong direction on a highway and struck various objects before a police officer got in front of the suspect and shot him as he passed. See Response at 20. The Plaintiffs assert that the Tenth Circuit held that the officer was not justified in shooting the driver merely because there was a remote and speculative possibility that the driver may put someone else in danger. See Response at 20.

The Plaintiffs argue that a state court found that a different Albuquerque Police Department (“APD”) officer used unreasonable force in shooting a fleeing suspect and found that APD’s deadly force training is not reasonably designed. See Response at 21 (citing Higgins v. City of Albuquerque, No. CIV 2009-0915 (N.M.2d Jud. Dist.)). They attempt to distinguish Estate of Larsen ex rel Sturdivan v. Murr by arguing that Tillison was not armed, that the SUV rolled backwards after Smith shot Tillison, that Tillison’s cellular telephone is less than five inches long, and that Smith was never in Tillison’s path. See Response at 21. The Plaintiffs argue that, immediately after Smith shot Tillison, he called dispatch and told them that he shot Tillison because Tillison tried to run over him. See Response at 21. They state that Smith did not mention that he believed that Tillison had a gun until the March 20, 2012, interview. See Response at 21.

The Plaintiffs argue that Smith violated APD’s standard operating procedures (“SOPs”). See Response at 22 (citing Albuquerque Police Department Procedural Orders, Use of Force (dated Apr. 20, 2009), filed April 18, 2014 (Doc. 1-2)(“APD Use of Force SOP”)). They contend that APD’s SOPs require officers, where feasible, to give a warning before using deadly force and state that, if a motor vehicle is bearing down on an officer, the officer should not fire at the vehicle, but should attempt to move out of its path. See Response at 22. The Plaintiffs quote the conclusions of their police procedures expert, Melvin Tucker, where he opines that Smith’s use of force was unreasonable. See Response at 22-23 (citing Expert Report of Melvin L. Tucker at 4-7, filed July 9, 2014 (Doc. 31-6)(“Tucker Report”)). The Plaintiffs argue that Smith’s reckless conduct caused Tillison’s death and the need to use deadly force. Response at 23. The Plaintiffs also assert that the Department of Justice found that Smith was not justified in shooting Tillison. See Response at 23 (citing Letter to Mayor Richard J. Berry from Jocelyn Samuels, Acting Assistant Attorney General, DOJ Civil Rights Division, and Damon P. Martinez, Acting United States Attorney, District of New Mexico (dated April 10, 2014) (“DOJ Letter”)).

The Plaintiffs argue that, even if the Court dismisses their federal claims, the New Mexico Legislature has waived Smith’s NMTCA immunity. They assert that New Mexico courts can interpret the New Mexico Constitution more broadly than the Constitution of the United States, but that New Mexico courts do not analyze a case under state constitutional law if the federal Constitution provides full protection. See Response at 24 (citing State v. Wagoner, 2001-NMCA-014, 130 N.M. 274, 24 P.3d 306). The Plaintiffs maintain that Smith’s conduct violated both the New Mexico and United States constitutions. See Response at 24. They contend that the New Mexico Constitution provides greater protection than the United States Constitution.- See Response at 24 (citing State v. Gomez, 1997-NMSC-006, 122 N.M. 777, 932 P.2d 1). The Plaintiffs argue that, because Smith’s seizure of Tilli-son was illegal, he does not have immunity under the NMTCA. See Response at 24 (citing N.M. Stat. Ann. § 41-4-12).

3. The Reply.

Smith replied to the Response on August 20, 2014. See Reply at 1. Smith argues that his March 20, 2012, and March 26, 2012, interviews do not contradict the Smith Aff. See Reply at 1. Smith asserts that homicide detectives, and not Internal Affairs officers, conducted the interviews and that his statements during the interviews were not sworn. See Reply at 1 n. 1. He contends that the Plaintiffs are not entitled to cross examine affiants and that the Supreme Court regularly permits summary judgment based on affidavits when qualified immunity is raised. See Reply at 1-2 (citing Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)).

Smith argues that his mental health is not at issue in the case, because he is not relying on a physical, mental, or emotional condition as a defense. See Reply at 10. He argues that, in Estate of Turnbow v. Ogden City, 254 F.R.D. 434 (D.Utah 2008) (Warner, M.J.), the Honorable Paul M. Warner, United States Magistrate Judge for the District of Utah, reiterated that the Supreme Court has recognized a psychotherapist-patient privilege and that mental health records are normally protected from discovery. See Reply at 10. Smith contends that the Plaintiffs have not shown how his mental health records are relevant or essential to responding to the Motion. See Reply at 10-11. He maintains that, when a defendant raises qualified immunity, the Court should stay discovery until it resolves the qualified-immunity issue and that the Court should narrowly tailor any discovery it allows. See Reply at 10-11.

Smith argues that Jobe’s, D.T.’s, J.T.’s, and I.M.’s loss of consortium claims are individual claims, and not claims that Tilli-son’s estate is bringing on its behalf. See Reply at 11. He argues that, while Jobe, D.T., J.T., and I.M. may be beneficiaries of Tillison’s estate, they cannot assert claims on their own behalf by asserting that the claims are brought on the estate’s behalf. See Reply at 11 (citing Warth v. Seldin, 422 U.S. at 499, 95 S.Ct. 2197; Dohaish v. Tooley, 670 F.2d at 936). Concerning the SUV, Smith argues that the Plaintiffs have not submitted any evidence showing that Tillison owns the SUV or that he had permission to drive it. See Reply at 11. Smith maintains that Tillison lacks standing to assert a constitutional violation with respect to the SUV. See Reply at 11 (citing United States v. Worthon, 520 F.3d 1173, 1183 (10th Cir.2008)).

Smith maintains that the Plaintiffs fail to present any facts showing that Tillison submitted to his authority before being shot, which would establish that Smith seized Tillison. See Reply at-12. Smith contends that the Plaintiffs must show that he actually restrained Tillison. See Reply at 12. Smith states that the Plaintiffs’ own expert, Stewart, opines that the vehicle did not come to a stop until after Smith shot Tillison. See Reply at 12. Smith argues that, without a showing that Tilli-son submitted to authority, there was no seizure. See Reply at 12.

Smith argues that the Plaintiffs ignore the facts which the dispatcher told him, including that the person in a black Mitsubishi Montero was possibly trying to sell stolen goods, that the vehicle had been reported stolen, and that it was not listed as being recovered. See Reply at 13. He contends that this information gave him reasonable suspicion to investigate further. See Reply at 13. Smith argues that the Court cannot rely on the Plaintiffs’ argument that he violated an SOP to establish a constitutional violation. See Reply at 13 (citing Tanberg v. Sholtis, 401 F.3d 1151, 1159 (10th Cir.2005)). He contends that the Plaintiffs’ statement that he parked his patrol car against the SUV’s bumper lacks support in the record and is contrary to evidence which the Plaintiffs provided. See Reply at 13.

Smith argues that he did not have to conduct an investigation before approaching the vehicle, because he did not need to take unnecessary risks, and because he faces a real threat each time he approaches an occupied vehicle. See Reply at 14. Smith argues that Zia Trust Co. ex rel. Causey v. Montoya is distinguishable, because that incident occurred at night, and because the officer in that case was not investigating a felony. See Reply at 14. Smith also argues that the officer in Zia Trust Co. ex rel. Causey v. Montoya did not announce that he was a police officer, the officer walked directly in front of the van with his gun drawn as he first approached the. vehicle, and the van moved forward less than one foot. See Reply at 14-15. Smith contends that, here, he was investigating a felony, he announced that he was a police officer, and Tillison’s vehicle continuously moved. See Reply at 14-15. Smith asserts that he had probable cause, because Tillison disobeyed his orders, because Tillison tried to hit him with the SUV, and because Tillison rammed other vehicles with the SUV. See Reply at 15.

In addressing the 'Plaintiffs’ reference to the DOJ Letter, Smith argues that the letter does not have preclusive effect. See Reply at 15 n. 4 (citing Shaffer v. R.J. Reynolds Tobacco Co., 860 F.Supp.2d 991, 999 (D.Ariz.2012) (Zapata, J.); Pooshs v. Philip Morris USA, Inc., 904 F.Supp.2d 1009, 1034 (N.D.Cal.2012) (Hamilton, J.); In re Light Cigarettes Mktg. Sales Practices Litig., 691 F.Supp.2d 239 (D.Me.2010) (Woodcock, Jr., C.J.)). Smith argues that he had no duty to warn Tillison before using deadly force. See Reply at 15 (citing Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1321 (10th Cir.2009)). He contends that the amount of force he used was not excessive, even though he learned after-wards that Tillison was not armed. See Reply at 15-16 (citing Blossom v. Yar-brough, 429 F.3d 963, 968 (10th Cir.2005)).

Smith asserts that Tucker’s report contains material omissions and improper conclusions. See Reply at 16. He contends that Tucker fails to mention that Tillison was moving around inside the vehicle, reaching into the back of the vehicle, disobeying multiple commands to put his hands out the window, and attempting to flee by colliding with Smith’s patrol car and the truck. See Reply at 16-17. Smith argues that Tucker fails to state that the reason Smith shot the vehicle’s tire was because Tillison almost ran over Smith with the vehicle, and because Smith was directly in the vehicle’s path. See Reply at 17. Smith contends that Tucker makes conclusory statements and inferences that are irrelevant, and the requisite legal standards do not support them. See Reply at 17. For those reasons, Smith maintains that the Court should disregard Tucker’s report. See Reply at 17 (citing Medina v. Cram, 252 F.3d at 1133).

4. The November 24, 2014, Hearing.

The Court held a hearing on November 24, 2014. See Transcript of Hearing (taken Nov. 24, 2014)(“Tr.”). Smith largely repeated his arguments from the briefing in regards to the standing and seizure issues. See Tr. at 4:2-5:24 (Griffin). Smith asserted that it is undisputed that Tillison drove the SUV backwards and forwards. See Tr. at 5:25-6:17 (Griffin). He stated that “the only time that [he is] contending that the vehicle itself was the deadly threat to officer Smith was when [Tillison] backed it up the first time and collided into officer Smith’s police vehicle, and almost hit officer Smith.” Tr. at 6:17-22 (Griffin). Smith stated that, when he “did end up using deadly force at Mr. Till[ison], it was the black object in which Mr. Tillfison] held out in ... a gangster style type manner of holding a firearm, that caused him to ... reasonably believe that it was a firearm and that he was about to get shot.” Tr. at 7:1-7 (Griffin). Smith contended that the vehicle was still a component of the deadly threat, because he had to make a split-second decision. See Tr. at 7:10-17 (Griffin). Smith repeated his arguments from the briefing concerning whether he had probable cause or reasonable suspicion. See Tr. at 7:17-8:20 (Griffin). He asserted that this case is more similar to Thomas v. Durastanti than Zia Trust Co. ex rel. Causey v. Montoya, because he identified himself as an officer, he did not jump in front of the SUV, the SUV was not disabled, the situation was rapidly evolving, and he perceived a threat that he thought was a firearm. See Tr. at 8:21-9:9 (Griffin).

The Court said that, when Smith called into dispatch and reported that there were shots fired, he stated that Tillison had attempted to run him over, suggesting that threat was the reason Smith shot Tillison. See Tr. at 9:19-24 (Court). The Court asked Smith if he was still asserting that he shot Tillison because Tillison tried to run over him. See Tr. at 9:23-24 (Court). Smith responded by stating that, during the dispatch call, he was trying to give a description of what happened, which included Tillison nearly running him over, but that the reason he used deadly force was because Tillison was holding a black object that could have reasonably been perceived to be a firearm. See Tr. at 9:25-10:9 (Griffin). Smith argued that the vehicle presented a secondary threat and that, while the vehicle was going in reverse when he shot Tillison, had Smith not shot Tillison, there is nothing that would have prevented Tillison from quickly changing direction. See Tr. at 10:10-19 (Griffin). Smith maintained, however, that “the actual deadly threat was the black object at the moment that the deadly force was” used. Tr. at 10:19-21 (Griffin).

The' Court asked Smith if there is a factual dispute why he shot Tillison, because he told the dispatcher that Tillison nearly ran him over, but now he is arguing that it was because of the cellular telephone. See Tr. at 11:2-9 (Court). Smith maintained that the dispatch call was merely a description of what happened, and not the reason for why he fired his gun, and that the reason he shot Tillison was because Tillison had a black object in his hand. See Tr. at 11:10-21 (Griffin). Smith stated that, at the time, he did not know which direction the vehicle was traveling, but that, for the Motion, the Court can assume that it was traveling in reverse. See Tr. at 11:21-12:6 (Griffin). Smith contended that he mentioned the black object during his interview with the homicide detectives, but that he is not sure if he mentioned it during his interview with internal affairs, because his counsel had not reviewed the transcript of the internal affairs interview. See Tr. at 12:22-13:11 (Griffin). Smith clarified that, when he stated that Tillison held the black object “gangster style,” he means that, if the object were a gun, Tillison would have been holding in a manner so that it was turned sideways. Tr. at 14:12-15:12 (Carpenter, Griffin, Court).

The Plaintiffs responded by stating that Jobe, D.T., J.T., and I.M. have brought loss-of-consortium claims, which they have standing to bring. See Tr. at 16:14-25 (Carpenter). The Plaintiffs clarified that Jobe’s, D.T.’s, J.T.’s, and I.M.’s claims are all state law claims, and not federal ones. See Tr. at 17:4-19 (Carpenter, Court). The Plaintiffs argued that Smith has made a number of contradictory statements, including that he initially told the dispatcher that he shot Tillison because Tillison almost ran him over, but now he is arguing that he shot him because of the black object. See Tr. at 18:14-19:20 (Carpenter). The Plaintiffs maintained that this contradiction creates a genuine issue of material fact. See Tr. at 20:13-21:1 (Carpenter, Court). The Court asked the Plaintiffs whether both statements could be true-that Smith shot Tillison because Tilli-son tried to run him over and beca