[00:00:00] Speaker 02:
24-2104, Gabaldon versus New Mexico State Police, Mr. Dunn.

[00:00:08] Speaker 00:
Good morning.

[00:00:08] Speaker 00:
May it please the court, counsel.

[00:00:10] Speaker 00:
I'm Blair Dunn, and I'm here on behalf of Craig Gabaldon.

[00:00:14] Speaker 00:
I'd like to start this morning by acknowledging a few things.

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This is probably the last pure section 1983 case that I'll have before this court that arises before the New Mexico Adoption of the Civil Rights Act.

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So to give you some time frames, this was January.

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of 2021 when this incident occurred.

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The second thing I would ask is a plea for humanity from this court that I myself, I will candidly admit, am guilty of having made an assumption when I first learned of this case of not making.

[00:00:43] Speaker 00:
That is the assumption that I believe that the district court ultimately fell into, which was Mr. Gabaldon is a member of the Banditos, or was a member of the Banditos at that point in time, and he must be a bad guy.

[00:00:53] Speaker 02:
Would you raise the podium a little bit?

[00:00:54] Speaker 00:
Sorry.

[00:00:57] Speaker 01:
You're tall.

[00:00:59] Speaker 00:
I try not to do that to opposing counsel, if I can help it.

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And so continuing with that thought, I will admit, at the beginning of this case, when I first learned of it, I thought for sure that there was no case here that just seemed entirely reasonable.

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And it wasn't until I went and reviewed the video and saw that there were, in fact, holes there that lead to what I felt were questions of fact, that ultimately, like Mr. Lynda Johnson did a very good job of pointing out, I think, in the last case, is it issue in this case?

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But the difference between this case and the case you just heard is that the video is not clear.

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And I think that is a big point that the district court crossed over.

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Specifically, there are five facts that the district court takes as gospel that are not in the video.

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The first is that Mr. Gabaldon turned into traffic, and you can't see that from the video.

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The court acknowledges you can't see from the video.

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That could only come, and I've reviewed the video.

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I assume the court has reviewed the video.

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That can only come from Officer Smith.

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Second is the rate of speed.

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That's not present in the video.

[00:02:04] Speaker 01:
Well, it looks pretty fast.

[00:02:06] Speaker 00:
Well, the district court says a naked eye evaluation.

[00:02:13] Speaker 00:
Motorcycles accelerate.

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But the point is there's a fact there.

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You can't clearly see that in the video.

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There's no recitation of, hey, my radar reads he's going 78.

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It doesn't show up in the video.

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The audio is on.

[00:02:26] Speaker 00:
Clearly, if he'd been reading that, he could have read his Viper and said, hey, he's going 78 miles an hour.

[00:02:30] Speaker 00:
That's not present in the video.

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Next, Officer Smith says that there are sparks that flew from the tailpipe as he made the right hand turn on the atoms.

[00:02:39] Speaker 00:
Excuse me, I got out of order.

[00:02:40] Speaker 00:
First, he says there's no signal, which you can't see in the video.

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You can't see a blinking light.

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But motorcycle riders commonly, especially gang members, don't use those signals.

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It's a source of pride.

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But that's another question of fact.

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It doesn't show up.

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You can't tell whether or not he raised his hand to give a hand signal or not.

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Whether he did or he didn't is something we don't know from the video.

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Fourth, Officer Smith says that sparks flew from the tailpipe of the motorcycle as he turned the court.

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That doesn't show up in the video, and you absolutely would expect to see that in the video.

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And that creates what will turn to as a credibility problem for Officer Smith in a minute.

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Finally, he says that Mr. Gabaldon appeared to wobble and have difficulty pulling his bike into the driveway.

[00:03:25] Speaker 00:
The video does not show that.

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In fact, I would say it looks more like he adroitly did that, not as somebody who was impaired.

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Those five facts are not present in the video the way that Officer Smith says they were, but they were taken as gospel by the district court.

[00:03:38] Speaker 02:
Are you appealing the spoliation order?

[00:03:41] Speaker 00:
We did.

[00:03:41] Speaker 02:
We did.

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I didn't see much in the briefs on that.

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The issue is the district court's decision doesn't openly rely on it.

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It appears, she reserves that and says that there will be lesser sanctions.

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She says that the spoliation did occur.

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We don't dispute that.

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There's some dispute of maybe when they should have asked and how relevant it actually is, given that they had pictures of it.

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But I think it's part of this permeation that leads to an adverse inference, even though she said she was going to decide that later, that the adverse inference actually showed up

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in her decision to grant summary judgment.

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But that's an implication.

[00:04:16] Speaker 02:
If we just discard your client's affidavit, then don't you have a problem with undisputed material fact?

[00:04:27] Speaker 00:
We do.

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And that's at the heart of this case.

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I agree that that is absolutely how the district court arrived at where it did, was that by excluding that affidavit, there is no longer a dispute to Officer Smith's recitation of the facts.

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100% agree with that the issue is the district court in deciding to exclude that evidence.

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I think went too far With the affidavit.

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I think in light of what we had said and in light of the recollection specifically well Then if you are challenging the court's order on spoliation or should didn't you should have argued that she abused her discretion by

[00:05:06] Speaker 02:
disregarding the affidavit in the summary judgment order.

[00:05:11] Speaker 00:
I think we did.

[00:05:13] Speaker 01:
It's not a spoilt relation.

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It's a sham affidavit determination.

[00:05:18] Speaker 00:
Right.

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There's two of them there.

[00:05:20] Speaker 00:
Right.

[00:05:21] Speaker 00:
I'm sorry.

[00:05:22] Speaker 02:
I meant the sham affidavit.

[00:05:23] Speaker 01:
Because the district court never got around to imposing any sanction for spoilt relation.

[00:05:29] Speaker 00:
Right.

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And that's why I said we just brought that up in terms of

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Adding to the overall inference that we believe that the district court fell prey to, which is understandable.

[00:05:37] Speaker 01:
So you're challenging the district court's determination that it was a sham affidavit and excluded it on that basis?

[00:05:45] Speaker 00:
Yes, Your Honor.

[00:05:46] Speaker 00:
Yes, Your Honor.

[00:05:47] Speaker 00:
That's at the heart of what we're saying.

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And there's a couple of things that go into that.

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Specifically, we address first Officer Smith's credibility issues.

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It appears he has included facts that are clearly not visible on the video.

[00:06:03] Speaker 01:
But just because they're not on the video doesn't mean he didn't see them.

[00:06:07] Speaker 01:
I mean, you claim there's, you can't see him, on the video you can't see him use a turn signal.

[00:06:16] Speaker 00:
True, true.

[00:06:16] Speaker 01:
And you're claiming he did use a turn signal, even though the video doesn't show it.

[00:06:21] Speaker 01:
But you're saying that officer, the officer cannot say there were sparks because it doesn't show on the video.

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So it seems like,

[00:06:30] Speaker 01:
you're taking pretty inconsistent positions about how we view the video.

[00:06:34] Speaker 00:
Well, I would say that that's the reason that there's a dispute of fact, is that ultimately you have inconclusive video evidence, and you have Officer Smith's recitation of what happened, and you have Mr. Gabaldon's recitation.

[00:06:48] Speaker 01:
But the problem that you have is that when his deposition was taken, his testimony was very different.

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And he didn't remember whether he used a turn signal or not.

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He couldn't dispute in his deposition any of the critical facts that the officer testified to.

[00:07:11] Speaker 01:
And then I think it's the night before the summary judge, the day before the summary judgment is filed, he files this affidavit contradicting

[00:07:20] Speaker 01:
his deposition testimony, isn't that kind of a classic situation of a sham affidavit?

[00:07:27] Speaker 00:
It might be the classic situation for a sham affidavit, but it is also the classic situation of how I turn in, when I obtain affidavits in response to motions for summary judgment from my clients.

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That's in the preparation in that period of time where we're preparing those, I have the client come in and the last thing I do is review that evidence with them and have them give me an affidavit regarding those material facts.

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The important point that I think the district court did, and this was a page 10 to 12 or 10 to 11 of our brief, the district court discusses that when I showed him or refreshed his memory with the videos, that his memory changed.

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And the court specifically notes that she would have expected that his recitation or refreshing of his memory, rather, would have reflected what's on the video.

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But the point of refreshing his memory was,

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It's the things that aren't on the video.

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What does he remember about them?

[00:08:18] Speaker 01:
But in his deposition, he stated that he had already reviewed the videos on pages 108 and 109 of his deposition.

[00:08:26] Speaker 00:
Not at any time table consistent or close to that, though.

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And as we pointed out in the footnote, he says, I don't know.

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I don't really remember a lot.

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And he discusses throughout his deposition that he's had memory issues associated to this event.

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I agree that there's a credibility issue for him and for Officer Smith both, and that ultimately his recitation may not be the one that is believed by the finder of fact.

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But that still gets us to the point where somebody is determining facts that are outside of the clearly extrinsic evidence of the video, and that was the district court.

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And that's why we're here today, is I think the district court got ahead of the facts and made a determination based upon something other than what is in the video

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and could only have achieved that decision by excluding the affidavit as a sham.

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And the parts of the affidavit that the district court feels are a sham largely centered around his ability to remember things associated to being dumped on his head by these officers.

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And we don't even get to the argument about whether or not that was excessive force and outside of the state police policy to use the illegal takedown maneuver that they did.

[00:09:29] Speaker 03:
It is a part of the problem with the affidavit that it sort of

[00:09:36] Speaker 03:
reverses the order that discovery is supposed to go into.

[00:09:39] Speaker 03:
I mean, wouldn't it just completely undermine the whole process if your client can go in and give his deposition an answer I don't know to everything and then come back when summary judgment's filed and say, you know what, I've reviewed some evidence and all those things that I didn't remember.

[00:09:58] Speaker 03:
I now remember because I refreshed my recollection, and the officer did do this, and the officer did do that, and I did turn on my signal, and I didn't speed.

[00:10:07] Speaker 03:
I mean, it just seems like it would be problematic for us to sort of agree that that's an OK way to proceed.

[00:10:17] Speaker 00:
Agreed, Your Honor.

[00:10:19] Speaker 00:
I don't disagree with that.

[00:10:20] Speaker 00:
That would be the classic, as Judge McHugh pointed out, typical sham affidavit type situation.

[00:10:26] Speaker 00:
But my client didn't have selective amnesia where he showed up and said, I don't remember everything.

[00:10:31] Speaker 00:
His deposition is also clear, and I think it should be read in its entirety, not just taken out of one piece or here or there where there's been an opportunity to refresh.

[00:10:39] Speaker 00:
We could have watched the video during the deposition.

[00:10:41] Speaker 00:
It wasn't my deposition.

[00:10:43] Speaker 00:
We didn't do that.

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We would have put an end to this question right then and there, because then he would have had the benefit of that.

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But taking as a whole, when you read his whole deposition, he's very clear that he's an individual that has got memory issues,

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associated to having real problems because of what happened to him.

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So unfortunately, it creates a situation.

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This is the plea for humanity.

[00:11:06] Speaker 00:
State police dumped him on his head, broke his clavicle, dumped him on his head hard enough he has trouble remembering that incident and things since then.

[00:11:14] Speaker 00:
He didn't have a problem with his memory that was documented.

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Before that, now he does.

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So the lesson to the police could be in the situation, well, if you mess up, make sure you dump them hard enough on their head, they can't remember anything that happens after that.

[00:11:24] Speaker 00:
And I'm not so sure that I'm comfortable with that.

[00:11:27] Speaker 02:
Is that medical evidence in the records?

[00:11:29] Speaker 00:
His VA records, though they're limited, as most VA records commonly, unfortunately, are, is there.

[00:11:36] Speaker 00:
The medical records from the jail and from the time at the state police substation are not great.

[00:11:41] Speaker 02:
The thing that would confirm the memory loss issue that you're

[00:11:46] Speaker 02:
discussing or where would I find confirmation in the record?

[00:11:50] Speaker 00:
Well if you look at his deposition you're not going to find medical records per se but he discusses showering at the jail and having blood come off scabs and blood come off in his hand from the top of his head while he's showering.

[00:12:02] Speaker 00:
Didn't even know that he had a head injury or a head wound.

[00:12:05] Speaker 00:
It's not documented in his

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And the records from the state police when he's at the substation awaiting to be sent out to the detention facility.

[00:12:13] Speaker 00:
But it's there and he's got he's got real issues with something happened to his head and there's blood and he remembers at least seeing that afterwards.

[00:12:22] Speaker 00:
He doesn't remember ever having the memory issues the short term memory issues and that's also in his deposition.

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He discusses his memory issues.

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that have arisen since this event that he didn't have before.

[00:12:32] Speaker 00:
So there is testimony in his deposition that supports that he has memory problems.

[00:12:35] Speaker 03:
Can I ask you a question about the spoliation?

[00:12:38] Speaker 03:
I just want to sort of nail this one down before your time's up.

[00:12:42] Speaker 03:
Is there anywhere in the district court's order where it is apparent that she

[00:12:50] Speaker 03:
used an adverse inference against your client?

[00:12:53] Speaker 00:
No.

[00:12:54] Speaker 03:
I mean, I just want to drill down on it.

[00:12:56] Speaker 03:
So there's basically, we really don't have anything that we can review that would show us that there was an adverse inference.

[00:13:03] Speaker 00:
No, it's my adverse inference towards Judge Rivera.

[00:13:06] Speaker 00:
That's what we have.

[00:13:07] Speaker 00:
It's my adverse inference that I believe she fell trap to the same thing that I fell trap to, which is that, hey, this guy's a member of the Banditos.

[00:13:14] Speaker 00:
And clearly, the officer's got to be right.

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He's got to be wrong.

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But that's where we are.

[00:13:18] Speaker 00:
I'll reserve the rest of my time.

[00:13:20] Speaker 02:
Thank you, counsel.

[00:13:26] Speaker 04:
Good morning, your honors.

[00:13:28] Speaker 04:
May it please the court?

[00:13:29] Speaker 04:
My name is Jessica Nixon from the law firm of Robles, Rael, and Anaya, and I am here on behalf of New Mexico State Police, Officer Kevin Smith, and Lieutenant Curtis Ward, which I will collectively refer to as the state defendants today.

[00:13:44] Speaker 04:
Before I start my argument, I'd like to briefly apologize for my voice.

[00:13:48] Speaker 04:
I lost my voice on my way here due to allergies.

[00:13:52] Speaker 02:
So if for any reason... Put the mic a little closer to your mouth and we're sorry.

[00:13:58] Speaker 04:
Thank you, Your Honor.

[00:13:59] Speaker 04:
If for any reason you can't hear me today, please just let me know and I'll do my best to speak louder.

[00:14:06] Speaker 04:
By way of brief factual background, this matter arises from the traffic stop and subsequent arrest of appellate Craig Gabaldon just after midnight on January 29th, 2021.

[00:14:19] Speaker 04:
Officer Smith was in his marked patrol unit and observed Mr. Gabaldon commit multiple traffic violations while operating a motor vehicle, namely his Harley Davidson motorcycle.

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After observing the traffic violations, Officer Smith attempted to initiate a traffic stop by engaging his emergency equipment before Mr. Gabaldon pulled into his driveway on Adams Street.

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Rather than stopping, Mr. Gabaldon proceeded to pull the motorcycle into the driveway, dismount, and head towards the residence.

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At Officer Smith's verbal command, Mr. Gabaldon turned to engage with Officer Smith and began removing various articles of his gear

[00:15:00] Speaker 04:
and placing them in the truck parked next to the motorcycle.

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Mr. Gabaldon's compliance stopped there.

[00:15:07] Speaker 04:
During the next minutes of the interaction, Mr. Gabaldon verbally resisted Officer Smith's lawful commands and questions regarding his identity and participation in field sobriety tests.

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There is no room to doubt that Mr. Gabaldon heard and understood the verbal instructions from Officer Smith as he often repeated the same back to Officer Smith.

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During the interaction, Officer Smith observed Mr. Gabaldon to have bloodshot watery eyes, slurred speech, and an odor of alcohol.

[00:15:39] Speaker 04:
Accordingly, during the interaction, Officer Smith had developed probable cause to arrest Mr. Gabaldon for driving while under the influence and violation of section 66-8-102D of the New Mexico statutes annotated.

[00:15:53] Speaker 01:
Can I interrupt to ask a question?

[00:15:55] Speaker 01:
When the officer decided he was going 78 miles per hour in a 35 zone, did he clock him or was it visual?

[00:16:07] Speaker 04:
He used his radar, yes.

[00:16:09] Speaker 01:
That's what I thought.

[00:16:10] Speaker 01:
Yes.

[00:16:10] Speaker 04:
So as Your Honor noted, that's one of the at least three traffic violations that Officer Smith observed before initiating the stop.

[00:16:19] Speaker 04:
And he was traveling more than twice the posted speed limits.

[00:16:23] Speaker 04:
At this point, it's important to note that Mr. Gabaldon himself testified during his deposition that he did not recall how fast he was going, nor did he recall the posted speed limit.

[00:16:35] Speaker 04:
And when we think about the sham affidavit, then, conveniently the day before, his response to the motions for summary judgment are due for calls that he wasn't exceeding the speed limit.

[00:16:48] Speaker 04:
However... He was complying with all traffic laws.

[00:16:51] Speaker 04:
Correct.

[00:16:51] Speaker 04:
And he specifically states he did not exceed the speed limit.

[00:16:55] Speaker 04:
However, his affidavit doesn't clarify or refresh or mention the posted speed limit, nor does he provide any evidence that he was, in fact, traveling at a rate of speed at 35 miles per hour.

[00:17:09] Speaker 04:
Rather, he executes the self-serving affidavit for the purpose of responding to summary judgment, which contradicts his earlier testimony, which was delivered under oath with counsel present while he had the opportunity to be cross-examined.

[00:17:25] Speaker 01:
Did he have a blood alcohol level taken?

[00:17:28] Speaker 04:
It's unknown if he did, because once he arrived at the New Mexico State Police substation, he completely stopped responding to Officer Smith, who asked him at least twice if he would consent to the breathalyzer.

[00:17:44] Speaker 04:
Well, I apologize.

[00:17:47] Speaker 04:
Officer Smith repeatedly asked him on two different occasions.

[00:17:50] Speaker 04:
He attempted to perform the breathalyzer and told Mr. Gabaldon that if he continued to not respond, he would take that as a refusal by Mr. Gabaldon to participate in the blood or the breathalyzer test.

[00:18:07] Speaker 04:
And it's important to note when we talk about the injuries that Mr. Gabaldon may or may not have sustained in this case, the video from Officer Smith's lapel camera at the substation when he's attempting to perform the breathalyzer test does not show any visible injuries.

[00:18:25] Speaker 04:
There's no sign of blood.

[00:18:27] Speaker 04:
Mr. Gabaldon isn't holding any part of his body indicating that he's in pain.

[00:18:31] Speaker 04:
There's just no evidence that that happened at the time.

[00:18:36] Speaker 04:
And regardless of whether or not there was an injury, that doesn't change the court's analysis on the summary judgment motions, which are before your honors here today.

[00:18:45] Speaker 02:
Does the video contradict the statement by Officer Smith about the sparks from the exhaust of a motorcycle?

[00:18:55] Speaker 04:
The video does not show whether or not that happened as Mr. Gabelton was making the right-hand turn from Carlisle onto Candleria eastbound.

[00:19:06] Speaker 04:
Regardless of what that video shows, that fact is not material to the determination of whether there was reasonable suspicion or probable cause in this case.

[00:19:15] Speaker 01:
Is it material to the officer's credibility?

[00:19:20] Speaker 04:
I don't believe it changes the fact that, as a matter of law, there was reasonable suspicion for the traffic stop, probable cause for the arrest, and that the force used was reasonable.

[00:19:34] Speaker 04:
And so therefore, the court could determine, based on the material facts, that there was no genuine dispute, and therefore summary judgment was proper.

[00:19:46] Speaker 04:
Mr. Gabaldon also appeals as alluded to in the previous argument that he was appealing the court's order on spoliation sanctions.

[00:19:58] Speaker 04:
There's no dispute that Mr. Gabaldon caused the spoliation of relevant evidence in this case.

[00:20:04] Speaker 04:
In fact, he caused the spoliation of the relevant evidence while the parties were in litigation with a pending motion before the court for that evidence.

[00:20:14] Speaker 04:
There's no dispute that he intentionally returned the motorcycle gear, which is the crux of his claims in this case, to the Banditos Motorcycle Club where they were burned in the month of July 2023.

[00:20:27] Speaker 03:
Wouldn't that only matter if he was able to make a connection between the spoliation and the district court's order on summary judgment?

[00:20:40] Speaker 04:
I absolutely agree with you Judge Carson.

[00:20:42] Speaker 04:
He can't make the connection between the spoliation and any of the district court's subsequent orders because the district court simply never fashioned a sanction for the spoliation of evidence.

[00:20:56] Speaker 04:
I simply want to emphasize that there is no dispute that Mr. Gabaldon caused the spoliation of that relevant evidence and it's not brought up or disputed by Mr. Gabaldon in the briefing nor before your honors today.

[00:21:08] Speaker 03:
Let me ask you a question about one of the traffic violations or purported traffic violations.

[00:21:15] Speaker 03:
I thought I heard Mr. Dunn say that the officer testified that he turned into oncoming traffic when he made the turn off onto Candleria.

[00:21:27] Speaker 03:
And sort of it's a precise question.

[00:21:32] Speaker 03:
I mean, did he testify to that or did he testify that he turned into the oncoming traffic lane?

[00:21:38] Speaker 03:
I mean, because it's pretty clear there's nobody out there that late.

[00:21:42] Speaker 04:
That's correct, Your Honor.

[00:21:44] Speaker 04:
And in fact, Officer Smith did not testify in this case.

[00:21:48] Speaker 04:
His deposition was never actually requested.

[00:21:51] Speaker 04:
Mr. Dunn, my opposing counsel's statements are based on, I believe, a pretrial interview conducted during the underlying criminal proceedings.

[00:22:00] Speaker 04:
However, that transcript confirms.

[00:22:03] Speaker 04:
that and as consistent with Officer Smith's report that Mr. Gabaldon turned into the eastbound lanes or the westbound lanes of Candelaria as he was turning eastbound.

[00:22:16] Speaker 04:
That is also consistent with Officer Smith's statements to Mr. Gabaldon in the driveway on Adams Street.

[00:22:23] Speaker 04:
He tells Mr. Gabaldon, you turned into the eastbound lanes.

[00:22:27] Speaker 04:
You turned into the wrong lanes of traffic as you were making that turn from Candelaria onto Carlisle.

[00:22:34] Speaker 04:
Oh, I'm sorry, I have that backwards from Carlisle onto Candelaria.

[00:22:38] Speaker 03:
Okay, thank you.

[00:22:40] Speaker 04:
The second issue that Mr. Gabaldon raises has to do with the Cheyenne Affidavit.

[00:22:46] Speaker 04:
And the opening brief submitted to this court by Mr. Gabaldon implies that he takes issue with the district court's finding because the district court did not analyze the Frensby-Nimmo factors.

[00:22:58] Speaker 04:
However, the district court's opinion makes clear

[00:23:02] Speaker 04:
that the district court not only analyzed those factors, but analyzed all three factors in great detail.

[00:23:10] Speaker 04:
The three factors that are set forth by this court and Franksby Nimmo are whether the affiant, in this case Mr. Gabaldon, was cross-examined during his earlier testimony, second, whether Mr. Gabaldon had access to the pertinent evidence at the time of the earlier testimony, or if the affidavit is based on newly discovered evidence,

[00:23:31] Speaker 04:
And third, whether the earlier testimony reflects confusion, which the affidavit attempts to explain.

[00:23:37] Speaker 04:
Turning to the first factor, there is no dispute in this case that Mr. Gabaldon, his earlier testimony during his deposition was under oath.

[00:23:48] Speaker 04:
He had the opportunity to be cross-examined and was represented by counsel.

[00:23:55] Speaker 04:
And the district court walked through this analysis.

[00:23:58] Speaker 04:
There's simply no reason to

[00:24:01] Speaker 04:
presume or conclude that the first Franks factor counsels in any way other than exclusion of the sham affidavit.

[00:24:10] Speaker 04:
The second factor was a much more detailed analysis by the district courts.

[00:24:16] Speaker 04:
In fact, the district court analyzed five different instances of inconsistencies in Mr. Gabaldon's affidavit and analyzed why the video evidence could not have refreshed his recollection.

[00:24:31] Speaker 04:
The issue is not what the video may or may not have proved.

[00:24:37] Speaker 04:
It's whether it would have refreshed his recollection sufficient to create this affidavit that contradicts Mr. Gabaldon's earlier deposition testimony in material ways.

[00:24:49] Speaker 01:
I think the argument is that by watching the video, it triggered his memory more broadly of the event.

[00:25:00] Speaker 01:
How do you respond to that?

[00:25:01] Speaker 04:
I don't believe that that conclusion is actually supported by the record.

[00:25:05] Speaker 04:
As the district court points out in its order discussing the affidavit, Mr. Gabaldon testified during his deposition that his memory issues and his memory loss was getting worse, not better.

[00:25:18] Speaker 04:
And as this court has discussed, there is simply nothing in

[00:25:23] Speaker 04:
in the videos which would have helped clarify some of those issues and inconsistencies from his deposition.

[00:25:29] Speaker 04:
For example, in his affidavit, Mr. Gabaldon purports that he had not drank alcohol for four months prior to the incident and hadn't drank since.

[00:25:40] Speaker 04:
However, in his deposition, he testified that he had consumed alcohol just one month prior to that deposition.

[00:25:46] Speaker 04:
There is nothing about the video evidence that would have helped clarify that fact.

[00:25:51] Speaker 04:
The same is true when you consider Mr. Gabaldon's belief for the reason that Officer Smith pulled him over.

[00:25:57] Speaker 04:
During his deposition, he was asked if he believed Officer Smith initiated and the traffic stopped and arrested him because he was wearing the Bandito's motorcycle gear.

[00:26:07] Speaker 04:
And Mr. Gabaldon testifies he did not know.

[00:26:12] Speaker 04:
Yet in his affidavit, he clearly states that that is the reason for his belief.

[00:26:17] Speaker 04:
There is nothing in the video evidence which would change Mr. Gabaldon's knowledge about his own belief for the reason he was pulled over.

[00:26:26] Speaker 03:
Why isn't all that cross-examination at trial?

[00:26:31] Speaker 03:
Why isn't the best course to have a trial on this and then you can have Mr. Gabaldon up on the stand and use all this stuff against him to make him look like he's not telling the truth?

[00:26:44] Speaker 04:
Yeah, and I think that that would be the plan when we address the state law claims that were rebranded back to state court.

[00:26:50] Speaker 04:
However, allowing that to happen at this stage with regard to the federal claims, which were dismissed on summary judgment, is an important mechanism to preserve

[00:27:00] Speaker 04:
the judicial resources and economy of the court and promote the purpose of summary judgment as well as qualified immunity that is granted to law enforcement officers under section 1983.

[00:27:11] Speaker 04:
And so in this case, if this case proceeds to trial, the New Mexico State Police, Officer Smith and Curtis Ward will have to endure that trial

[00:27:21] Speaker 04:
And the time and expense that that takes for all the parties involved, including the court, is not supported by a dispute of material fact in this case.

[00:27:32] Speaker 04:
And that is the point of summary judgment.

[00:27:34] Speaker 04:
And as Your Honor Judge Carson pointed out, if parties were able to undermine the entire litigation process by simply presenting an affidavit at the summary judgment stage,

[00:27:46] Speaker 04:
It defeats the purpose, and it allows parties to proceed when there is no actual genuine dispute of material facts.

[00:27:55] Speaker 04:
And briefly, I just want to touch on Mr. Gabaldon's last argument for appeal here today, and that has to do with the stop that was initiated by Officer Smith.

[00:28:09] Speaker 04:
There is no doubt that the

[00:28:12] Speaker 04:
there was reasonable suspicion to support this stop.

[00:28:15] Speaker 04:
As the record demonstrates, there were three instances of observed traffic violations which are undisputed.

[00:28:22] Speaker 04:
So for these reasons and those discussed in the briefing, state defendants respectfully request affirmance of all of the district court's orders.

[00:28:29] Speaker 04:
Thank you.

[00:28:29] Speaker 02:
Thank you, counsel.

[00:28:30] Speaker 02:
We could follow along.

[00:28:31] Speaker 02:
Thanks for persevering.

[00:28:32] Speaker 02:
Mr. Dunn, you had some rebuttal.

[00:28:41] Speaker 00:
The issue is, are there disputed material facts?

[00:28:44] Speaker 00:
I think there's an important point in the video that makes, so there's the three traffic violations that occur prior to the initiation of the, or the initiation stop.

[00:28:56] Speaker 00:
Most of the belief that Officer Smith says he had is that he observed the sparks flying off, which was indication that Mr. Gabaldon was driving under the influence.

[00:29:06] Speaker 00:
That's one.

[00:29:07] Speaker 00:
The other is the speeding and the crossing the lines.

[00:29:09] Speaker 01:
Well, he's got radar on the speeding.

[00:29:12] Speaker 01:
That's enough right there to pull him over, right?

[00:29:14] Speaker 00:
Assuming he's telling the truth about what his radar showed and whether he actually had any radar running on him.

[00:29:19] Speaker 00:
What you have is you have somebody saying he sped at 78 miles an hour.

[00:29:23] Speaker 00:
He still manages to catch him.

[00:29:25] Speaker 00:
And you can hear the vehicle wind up, the suburban wind up that he's driving really fast.

[00:29:29] Speaker 00:
War cycles accelerate much quicker and slow down much quicker.

[00:29:32] Speaker 00:
He's still able to catch him by the time, at least on camera, by the time he gets to Adams Street.

[00:29:36] Speaker 00:
So he didn't engage, this is my point, he didn't engage his lights or sirens when he decided to break the speed limit to run down that street.

[00:29:45] Speaker 00:
The officer didn't.

[00:29:46] Speaker 00:
So the officer, which if you're going to engage in a pursuit, you're supposed to engage your lights and sirens.

[00:29:52] Speaker 00:
He didn't.

[00:29:54] Speaker 00:
Why didn't he do that?

[00:29:55] Speaker 00:
That's a big question as to his credibility.

[00:29:57] Speaker 00:
Instead, he just speeds down to 35 mile an hour.

[00:29:59] Speaker 03:
But that's extra record, right?

[00:30:01] Speaker 00:
It is.

[00:30:02] Speaker 00:
It is.

[00:30:02] Speaker 00:
But it's stuff that can be inferred from the video itself.

[00:30:06] Speaker 00:
Those inferences could have been made in favor of my client instead of made in favor of the state police officer.

[00:30:11] Speaker 00:
And that's in some where we end up.

[00:30:14] Speaker 00:
The reality is is that there are enough disputed material facts here that we should have had the opportunity to test the credibility of Officer Smith and Mr. Gabaldon in front of a jury.

[00:30:24] Speaker 00:
That's what should have happened here.

[00:30:25] Speaker 00:
And while I can understand why the district courts engage in summary judgment, there are those cases where we really do have to put it to a jury and this was one of those.

[00:30:32] Speaker 02:
Thank you.

[00:30:36] Speaker 02:
Counselor excused and the case is submitted.

[00:30:38] Speaker 02:
Appreciate your arguments this morning.