                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                         June 2, 2015
                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
JOSE VALENCIA,

             Plaintiff - Appellant,

v.                                                         No. 14-2171
                                               (D.C. No. 1:13-CV-00930-JAP-WPL)
OFFICER HEINZ DE LUCA; OFFICER                              (D. N.M.)
SEAN STRAHON; OFFICER CASEY
SALAZAR; OFFICER MARK
LEWANDOWSKI; OFFICER ALAN
MASCARENAS, individually and in
their official capacities and as employees
of the Santa Fe Police Department; CITY
OF SANTA FE,

             Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, McKAY and PHILLIPS, Circuit Judges.


      Jose Valencia, appearing pro se, appeals the district court’s entry of summary

judgment in favor of defendants on claims arising out of a traffic stop and his arrest.


*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s

thorough and detailed Memorandum Order and Opinion.

I.     STANDARDS OF REVIEW

       Most of the traffic stop and arrest was recorded by the in-unit cameras of the

individual defendants, police officers of the Santa Fe, New Mexico, Police

Department. 1 Although our review is de novo, and we construe the evidence in the

light most favorable to Mr. Valencia, against whom summary judgment was granted,

Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014), we, like the district

court, must “view[] the facts in the light depicted by the video[recording],” Scott v.

Harris, 550 U.S. 372, 381 (2007). We therefore cannot adopt a party’s version of the

facts where “there is clear contrary video evidence.” Thomas v. Durastanti, 607 F.3d

655, 659 (10th Cir. 2010). The district court granted qualified immunity to the

individual defendants on Mr. Valencia’s federal claims, so we must determine

whether Mr. Valencia met his burden to show that they “violated a federal

constitutional or statutory right and, if so, . . . that the right was clearly established at

the time of [their] unlawful conduct.” Estate of Booker, 745 F.3d at 411.

Mr. Valencia was represented by counsel in the district court, but he appears pro se

on appeal. We therefore liberally construe his pro se appellate filings but do not act

as his advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
1
      Defendants submitted five video recordings as media exhibits to their
summary judgment motion and have filed them in a supplemental appendix on
appeal. We will refer to them by officer name and approximate time.


                                            -2-
II.   FACTUAL BACKGROUND

      Officer De Luca observed Mr. Valencia driving on Santa Fe’s Cerrillos Road

at night with front lights that “appeared dimmer than standard headlights and . . . dull

orange in color” in comparison with other cars on the road. R., Vol. 1 at 141. Based

on that observation, Officer De Luca believed Mr. Valencia was driving with parking

lights instead of headlights, in violation of Santa Fe’s traffic code, so he made a

U-turn, activated his emergency lights, and initiated a traffic stop. Sergeant Strahon

pulled in behind Officer De Luca, who was immediately behind Mr. Valencia as

Mr. Valencia made a left turn off Cerrillos Road while the light was red and a right

turn into a gas station, where he parked. In the car with Mr. Valencia were C.T. and

J.M., and all three were sixteen or seventeen years old.

      When Mr. Valencia gave Officer De Luca his license, registration, and proof

of insurance, both officers smelled a strong odor of burnt marijuana emanating from

the car. Sergeant Strahon told the occupants that it would be easier if they just

surrendered the marijuana or paraphernalia. Someone in the car said they had been

smoking “spice,” and Mr. Valencia handed Sergeant Strahon a bag of something.

Strahon Video at 3:30-4:11. 2 Sergeant Strahon noted the bag was labeled “not for

human consumption” and, referring to it as “Cush” and “potpourri,” said it was not


2
      Both officers claimed Mr. Valencia made the statement and handed over the
bag, but the district court declined to consider that testimony because the video
evidence was unclear about who made the statement and it did not show what was in
the bag.


                                          -3-
what he smelled—he smelled “weed.” Id. at 4:11-43. C.T. then handed Officer

De Luca a “roach” (the remainder of a marijuana cigarette) and said they had been

smoking it “on and off.” De Luca Video at 5:20-24.

      Officer De Luca obtained the names and birthdates of Mr. Valencia’s

passengers, neither of whom had identification, but when he ran their information

through law enforcement databases, he was unable to obtain anything on J.M.

Meanwhile, Mr. Valencia asked Sergeant Strahon if he could put on his jacket, which

was on the back seat. Sergeant Strahon patted down the jacket for weapons, found

none, and handed it to Mr. Valencia. Officer De Luca then returned, gave

Mr. Valencia a citation for driving without headlights, and returned his paperwork to

him. Officer De Luca next mentioned the marijuana smell and asked for permission

to search the car. Mr. Valencia declined, saying that he had spoken with his father,

who advised him not to do anything until his father arrived.

      Officer De Luca went to the passenger side to get additional personal

information from the passengers, but J.M. could not or would not provide his address

or social security number. As Officer De Luca was talking to the passengers, Officer

Salazar arrived. He approached the driver’s side and asked Mr. Valencia several

times for the keys, which were still in the ignition. After declining several times,

Mr. Valencia gave the keys to Officer Salazar, who placed them on the roof.

      Officer De Luca informed Sergeant Strahon that J.M. did not know his home

address or social security number and that his information had not come back from


                                          -4-
the databases Officer De Luca had searched. Concerned that J.M. was trying to

conceal his identity, Sergeant Strahon tried to open the rear passenger door where

J.M. was sitting, but it was locked. He asked J.M. to step out of the car, but

Mr. Valencia told J.M. not to get out and allegedly rolled up the windows. When

Sergeant Strahon told Mr. Valencia he needed J.M. out of the car, Mr. Valencia

questioned his authority absent a warrant. Sergeant Strahon said he did not need a

warrant to remove J.M. and, for safety reasons, directed Officers De Luca and

Salazar to take Mr. Valencia out of the car. Officer Salazar opened the driver’s door,

and both he and Officer De Luca asked Mr. Valencia repeatedly to get out of the car

while attempting to pull him out. Mr. Valencia refused, bracing his legs against the

floorboard and grabbing onto the steering wheel.

      During the ensuing two-minute struggle with Officers De Luca and Salazar,

Mr. Valencia continuously argued with them, claiming they were hurting him and

that he would come out if they let go. Toward the end of the struggle,

Sergeant Strahon told Mr. Valencia that he was obstructing the officers by telling

J.M. not to get out and by refusing to get out himself, all of which Mr. Valencia

denied. After Officer De Luca began to twist Mr. Valencia’s left wrist and arm and

use pressure points, the officers were able to get Mr. Valencia out and handcuff him.

      Meanwhile, J.M. told Sergeant Strahon he did not know his address because he

had just moved. He then stepped out of the car, and Sergeant Strahon handcuffed

him and placed him in a patrol car.


                                         -5-
      A search of Mr. Valencia revealed, among other things, a diabetes test kit and

a plastic bag in his jacket pocket containing a substance that field-tested as

marijuana. During that search, Officers Lewandowski and Macarenas arrived.

Officer Lewandowski noted the strong odor of marijuana coming from

Mr. Valencia’s car. He had C.T. call his mother, then spoke to her himself,

informing her of the situation and that she would have to pick up her son at the police

station. Officer Lewandowski searched C.T. and placed him in a patrol car. After

reading him his Miranda rights, Officer Lewandowski questioned C.T., who said he,

Mr. Valencia, and J.M. had been at a festival and “made a very stupid choice” to

“smoke in the car.” Lewandowski Video at 15:32-45. He clarified that they had

“smoked pot, . . . a pretty big joint.” Id. at 15:47-57. A search of Mr. Valencia’s car

uncovered a small vial of a green leafy substance, but there is no indication that the

substance was ever identified.

      When Mr. Valencia’s father arrived, he informed the officers that his son has

Type I diabetes but declined their offer to call for medical assistance. See Salazar

Video at 42:50-43:30, 50:10-38. The officers photographed Mr. Valencia with his

jacket off, and in response to questioning, Mr. Valencia said he was not injured or in

pain. The officers released Mr. Valencia and the car, which his father owned, to his

father’s custody. The traffic citation and the charges against Mr. Valencia (resisting

arrest, obstruction, and possession of marijuana) were eventually dismissed.




                                          -6-
       Mr. Valencia then brought this action. He asserted claims against the

individual officers under 42 U.S.C. § 1983, alleging they violated his Fourth

Amendment rights against unlawful detention and seizure and the use of excessive

force, and his First Amendment free-speech rights. He also advanced claims against

all the officers under New Mexico law for assault, battery, false arrest, false

imprisonment, and violation of the New Mexico Children’s Code. He further

claimed Officer De Luca maliciously prosecuted him in violation of state law, and

the City of Santa Fe was liable for negligent hiring, training, and retention of the

defendant officers and under the doctrine of respondeat superior.

III.   DISTRICT COURT’S DECISION AND OUR ANALYSIS

       A. The stop

       Defendants filed a motion for summary judgment, with the individual officers

asserting qualified immunity. The district court granted that motion. The court first

concluded Officer De Luca had reasonable suspicion of a traffic violation, which

justified the initial stop. See United States v. Botero-Ospina, 71 F.3d 783, 787

(10th Cir. 1995) (en banc) (holding that “a traffic stop is valid under the Fourth

Amendment if the stop is based on an observed traffic violation or if the police

officer has reasonable articulable suspicion that a traffic or equipment violation has

occurred or is occurring”). The court observed that Officer De Luca’s dashboard

camera showed that although Mr. Valencia’s headlights were in fact on, they

appeared duller and dimmer than the bright white headlights of other cars captured on


                                          -7-
the recording, and the video evidence supported Officer De Luca’s affidavit

testimony that the headlights on Mr. Valencia’s car did not illuminate the road in

front of him very brightly when he made the left turn off Cerrillos Road or the right

turn into the gas station. The court concluded it was reasonable under the

circumstances for Officer De Luca to think the headlights were off. See United

States v. DeGasso, 369 F.3d 1139, 1144 (10th Cir. 2004) (“An officer’s reasonable

mistake of fact, as distinguished from a mistake of law, may support the probable

cause or reasonable suspicion necessary to justify a traffic stop.”). 3

      We agree with the district court’s analysis on this issue. Although

Mr. Valencia’s lights were on and the citation was ultimately dismissed, that does not

undermine the reasonableness of Officer De Luca’s suspicion at the time of the stop,

given the video evidence. Nor is Officer De Luca’s suspicion undermined by




3
       Even though Officer De Luca’s video footage clearly showed Mr. Valencia ran
the red light when he made the left off Cerrillos Road, the court did not base its
reasonable-suspicion analysis on that fact because by then, Officer De Luca had
already activated his emergency lights, and in the absence of probable cause, a
nonconsensual traffic stop must be “justified at its inception,” United States v.
Salzano, 158 F.3d 1107, 1111 (10th Cir. 1998) (internal quotation marks omitted).
However, the court considered that violation part of the circumstances the officers
were entitled to rely on in the investigation of whether Mr. Valencia was impaired.
       The court also considered it immaterial that there were some differences
between Officer De Luca’s Internal Affairs interview and his affidavit supporting his
request for qualified immunity, concluding there were only additional details in the
affidavit, which he prepared after admittedly refreshing his recollection of the
incident by watching the videotapes. We see no error in that conclusion.


                                           -8-
Mr. Valencia’s allegation that, during his five-mile drive on Cerrillos Road, he drove

past other police officers without getting pulled over.

      B. Extension of the stop

      We also agree with the district court’s conclusion that the officers were

justified in extending the duration of the traffic stop because they had reasonable

suspicion of criminal activity—possession of marijuana and driving while

intoxicated—based on Mr. Valencia’s left turn off Cerrillos Road against the light,

the marijuana smell, and the roach, which C.T. said was the remains of what they had

been smoking. See United States v. Kitchell, 653 F.3d 1206, 1217-18 (10th Cir.

2011) (stating settled rule that an officer may extend a traffic stop beyond its original

purpose if the officer “acquire[s] a particularized and objective basis for suspecting

the particular person stopped of criminal activity” (internal quotation marks

omitted)); United States v. Bradford, 423 F.3d 1149, 1160 (10th Cir. 2005)

(concluding that an officer has probable cause to search entire vehicle when its

occupant hands marijuana to the officer); United States v. Parker, 72 F.3d 1444, 1450

(10th Cir. 1995) (finding probable cause to search passenger compartment when

officer smells marijuana there). The video evidence squarely rebuts Mr. Valencia’s

arguments that he did not run the light and that C.T. did not hand over the roach and

then state that the three had been smoking it. Contrary to Mr. Valencia’s argument,

the fact that there was no cloud of smoke visible when the officers were first in

contact with the vehicle does not establish that the officers did not smell burnt


                                          -9-
marijuana. Further, their claim that they smelled burnt marijuana is clearly supported

by other evidence that the three juveniles had smoked marijuana in the car. 4

      C. The arrest

      The district court next considered whether probable cause supported

Mr. Valencia’s arrest. “When a warrantless arrest is the subject of a § 1983 action,

the arresting officer is entitled to qualified immunity if a reasonable officer could

have believed that probable cause existed to make the arrest.” Robertson v. Las

Animas Cnty. Sheriff’s Dep’t, 500 F.3d 1185, 1191 (10th Cir. 2007). “Probable cause

exists if facts and circumstances within the arresting officer’s knowledge and of

which he or she has reasonably trustworthy information are sufficient to lead a

prudent person to believe that the arrestee has committed or is committing an

offense.” Id. (internal quotation marks omitted). The court reasoned that, from the

beginning of the traffic stop, there was probable cause to investigate marijuana


4
       Mr. Valencia also relies on Commonwealth v. Overmyer, 11 N.E.3d 1054
(Mass. 2014), for the notion that the odor of marijuana is insufficient to establish
reasonable suspicion or probable cause. Setting aside that Overmyer is not binding
precedent in the Tenth Circuit, Mr. Valencia’s reliance on it is misplaced because the
case concerned whether the odor of unburnt marijuana alone established probable
cause to believe that a vehicle contains criminal contraband or evidence of a crime,
see id. at 1055. Here, the officers had more than simply odor. Further, Overmyer
turned on the fact that, in Massachusetts, possession of less than one ounce of
marijuana is a civil violation, not a criminal one, and there was no evidence the
officers could, by smell, discern a criminal quantity of marijuana. Id. at 1057-60. In
the absence of a prescription, New Mexico makes first-time possession of “one ounce
or less of marijuana . . . a petty misdemeanor,” N.M. Stat. Ann. § 30-31-23(B), so the
smell of burnt marijuana would be a sufficient basis for reasonable suspicion of
criminal activity where, as here, there is no evidence of a prescription.


                                          - 10 -
possession or driving while intoxicated, and in connection with that investigation, it

was reasonable and lawful to order Mr. Valencia to get out of the car. See Bradford,

423 F.3d at 1160; Parker, 72 F.3d at 1450; Maryland v. Wilson, 519 U.S. 408, 415

(1997) (holding that an officer does not violate the Fourth Amendment when, during

a lawful traffic stop, he orders passengers to get out of the vehicle); Pennsylvania v.

Mimms, 434 U.S. 106, 111 n.6 (1977) (per curiam) (same with respect to the driver).

Therefore, the court concluded, the officers had probable cause to arrest Mr. Valencia

for marijuana possession, driving while intoxicated, and for resisting and

obstructing. 5

       We agree, and nothing in Mr. Valencia’s appellate briefs persuades us to the

contrary. We reject his contention that the officers planted the baggie on him, which

he bases on the fact that Sergeant Strahon did not find the baggie when he patted

down Mr. Valencia’s jacket for weapons and that the baggie fell to the ground and

blew a short distance away during the search of Mr. Valencia. Sergeant Strahon did

not exhaustively search the jacket for drugs but only felt for weapons, and although

somewhat dark and grainy, the videos show Officer De Luca pulling a baggie out of

the breast pocket of Mr. Valencia’s jacket, the baggie falling to the ground, and
5
        The court referred to natural and synthetic marijuana, the latter of which is
also illegal in New Mexico absent a prescription, but the court had earlier stated it
would not credit testimony that it was Mr. Valencia who said they had been smoking
“spice” and handed over a bag of “spice,” which is apparently a term used for
synthetic marijuana. Because there clearly was probable cause to arrest Mr. Valencia
with regard to natural marijuana, any error in the court’s reference to synthetic
marijuana at this point was harmless.


                                         - 11 -
Officer Strahon retrieving it. De Luca Video at 29:28-45; Strahon Video

at 28:54-29:10. Further, the district court did not rest its probable-cause

determination on Sergeant Strahon’s belief that J.M. was concealing his identity or

that Mr. Valencia may have falsely imprisoned J.M. when he allegedly rolled up the

windows and locked the doors. It is therefore immaterial whether those beliefs were,

as Mr. Valencia claims, a ruse.

       D. Removal by force

       The district court next concluded the force used to remove Mr. Valencia from

the car was objectively reasonable in light of the circumstances. See Olsen v. Layton

Hills Mall, 312 F.3d 1304, 1314 (10th Cir. 2002) (stating qualified-immunity analysis

considers whether force was “objectively reasonable in light of the facts and

circumstances,” including the severity of the alleged crime, the degree of suspect’s

“potential threat,” and his “efforts to resist or evade arrest” (internal quotation marks

omitted)). The court observed that pulling on Mr. Valencia, using pressure points,

and twisting his wrist and arm was no greater force than the force we considered

reasonable in Mecham v. Frazier, 500 F.3d 1200, 1203, 1204-05 (10th Cir. 2007),

which involved the use of pepper spray to the face and the physical removal of a

resistant traffic-stop suspect. 6


6
        The court also cited two cases from other circuits where qualified immunity
was granted to officers who used similar techniques and degrees of force in removing
traffic-stop suspects from their vehicles. See Lawrence v. Kenosha Cnty., 391 F.3d
837, 843 (7th Cir. 2004); McGruder v. Heagwood, 197 F.3d 918, 920 (8th Cir. 1999).


                                          - 12 -
      We again agree with the court’s analysis, especially given that the officers had

the lawful authority to remove Mr. Valencia from the car and that the amount of

force used was minimal in comparison with more drastic techniques, such as the use

of pepper spray, tasers, or batons, all of which the officers claimed they did not use

because Mr. Valencia was a juvenile. Mr. Valencia claims the officers could not

remove him because he was still wearing his seat belt, and once he unfastened it, he

got out “voluntarily.” Aplt. Opening Br. at 17; Reply at 2, 5. We reject those claims.

Mr. Valencia alleged in his complaint that he was “forcibly extracted,” R., Vol. 1

at 18, and the video evidence conclusively shows that he did not get out of the car

“voluntarily.” At one point during the struggle, he says, “If I let go, I’m going to hit

my head,” De Luca Video at 27:57-59, which is contrary to his self-serving

attestation that he was not holding on to the steering wheel or otherwise bracing

himself inside the car but was instead simply belted into his seat. See Garrett v.

Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002) (stating that, in

evaluating summary judgment proceedings, “[w]e do not consider [a nonmovant’s]

conclusory and self-serving affidavits” (internal quotation marks omitted)). Thus,

although one officer was able to obtain control of his left arm, it is beyond dispute

that Mr. Valencia was physically maintaining himself in the car (the exact manner is

immaterial), and he points to no clearly established law that would suggest to a




                                         - 13 -
reasonable officer that pulling him out of his car by his arms and, he claims, head and

neck, constituted excessive force. 7

      E. First Amendment claim

      To prevail on his First Amendment retaliatory-arrest claim, Mr. Valencia had

to show “he was engaged in constitutionally protected activity,” “the government’s

actions caused him injury that would chill a person of ordinary firmness from

continuing to engage in that activity,” and that the officers’ “actions were

substantially motivated as a response to his constitutionally protected conduct.”

Stonecipher v. Valles, 759 F.3d 1134, 1147 (10th Cir.), cert. denied, 135 S. Ct. 881

(2014). The district court found no evidence that the officers were substantially

motivated to arrest him by anything Mr. Valencia said during the incident. Instead,

the court concluded that the officers were substantially motivated (and justified) in

arresting Mr. Valencia when he physically resisted lawful orders to step out of the

car. We agree with that conclusion. Certainly, part of Sergeant Strahon’s motivation

in ordering Officers De Luca and Salazar to take Mr. Valencia out of the car was


7
       Although Mr. Valencia averred that there are medical records showing he
suffered serious physical and emotional injuries, he provided no evidence of the
nature or extent of any injuries such that they might bear on the reasonableness of the
force used. See Cortez v. McCauley, 478 F.3d 1108, 1129 (10th Cir. 2007) (stating
that Fourth Amendment excessive-force claim requires more than a de minimis
physical or emotional injury); see also Garrett, 305 F.3d at 1213 (declining to
consider nonmovant’s “conclusory and self-serving affidavits” when evaluating
summary judgment proceedings (internal quotation marks omitted)). Further, he
disclaimed injury just before he was released to his father’s custody, and the
post-arrest video footage of him without his jacket on shows no obvious injury.


                                         - 14 -
Mr. Valencia’s statement that a warrant was necessary to remove J.M. from the car

and his instruction that J.M. not get out. But as the district court noted,

Mr. Valencia’s warrant argument was legally incorrect, see Wilson, 519 U.S. at 415;

Mimms, 434 U.S. at 111 n.6, and we are unaware of any clearly established

free-speech right to wrongfully instruct another person to disobey a police officer’s

lawful order. The district court properly granted qualified immunity on this claim.

      F. State law tort claims

      The court next held that Mr. Valencia’s state-law tort claims (assault, battery,

false arrest, false imprisonment) and his malicious abuse of process claim failed

because the officers had probable cause to arrest him and did not use excessive force.

See Dickson v. City of Clovis, 242 P.3d 398, 404 (N.M. Ct. App. 2010) (stating that

such claims “presuppose” a lack of “probable cause to arrest”). We see no error in

that conclusion, or in the court’s disposition of Mr. Valencia’s remaining state-law

claims. His claim under the New Mexico Children’s Code failed because he was

released to his father’s custody, not sent to a detention center. See N.M. Stat. Ann.

§ 32A-2-11(A) (prohibiting placement of a juvenile in detention unless an assessment

shows he is a risk to himself or others, or that he may leave the jurisdiction). His

claim against the City of Santa Fe for negligent hiring, training, and retention of the

defendant officers failed because the officers did not proximately cause any tort for

which the state waived sovereign immunity. See Ortiz v. N.M. State Police, 814 P.2d

117, 118-19 (N.M. Ct. App. 1991) (recognizing sovereign immunity is waived for


                                          - 15 -
such a claim when the subordinates proximately cause an underlying tort). And

because the defendant officers had not themselves committed any tort for which

sovereign immunity was waived, his respondeat superior claim against the City

failed. See Silva v. State, 745 P.2d 380, 385 (N.M. 1987) (explaining that a

respondeat superior claim against a governmental entity requires an underlying tort

by the entity’s employee).

IV.    CONCLUSION

       The judgment of the district court is affirmed. Mr. Valencia’s motion to

proceed on appeal without prepayment of costs or fees is granted, and we remind him

of his obligation to continue making partial payments until his entire filing fee has

been paid in full.


                                                  Entered for the Court


                                                  Mary Beck Briscoe
                                                  Chief Judge




                                         - 16 -
