The Scope of Authority of a District Attorney is the Focus of Argument at the Tenth Circuit

The case of Stanley v. Gallegos, USDC 1:11-CV-01108, was argued before the United States Circuit Court of Appeals for the Tenth Circuit on September 21, 2016.  The Hatcher Law Group represents the District Attorney for the Eighth Judicial District, New Mexico, which includes Colfax County, Donald Gallegos.


On August 24, 2011, Mr. Gallegos, accompanied by Colfax County sheriff deputies, removed a gate obstruction from a road in the White Peaks Wilderness Area known as Red Hill Road, which cuts through private land owned by the Stanley ranch.  Mr. Stanley erected the gate, claiming private property interests.  The parties dispute whether Red Hill Road is public or private.  Acting on information forming his belief that the road was public, however, Mr. Gallegos and a Colfax County sheriff’s deputy removed a gated, locked obstruction thereby triggering a § 1983 action against him by Stanley on grounds of an alleged unconstitutional search and seizure under the Fourth Amendment, an unconstitutional taking under the Fifth Amendment, and failure to provide appropriate procedural due process under the Fourteenth Amendment.  Mr. Gallegos moved for summary judgment on grounds of qualified immunity arguing there was no clearly established law which would inform him that his acts of removing the public road obstruction were unconstitutional.  The federal district judge not only denied the motion but refused to apply the standard two-prong qualified immunity analysis initially established in Harlow v. Fitzgerald, 454 U.S. 1028 (1981). That test requires a showing not only that constitutional rights were infringed upon by the actions of the defendant, public official, but that those constitutional rights were clearly established through relevant state, Tenth Circuit, or United States Supreme Court authority.  The district judge ruled that Mr. Gallegos was acting outside the scope of his authority as a district attorney in carrying out what was described as “self-help” enforcement measures, thus not having the right to have the Court consider whether he was entitled to dismissal under the principles of qualified immunity.  The district judge cited, in support of his scope of authority argument, a Fourth Circuit case, In Re: Allen, 106 F.3d 582 (4th Cir 1997).


Scott Hatcher, arguing for Mr. Gallegos, asserted the district judge failed to appropriately measure the district attorney’s powers beyond those narrowly set forth in NMSA 1978 § 36-1-18, which delineates a district attorneys authority to prosecute crimes and represent the County in civil cases.  It was asserted that the district court failed to consider a district attorney’s investigative or police-like powers.  Had the district judge done so, it was asserted, the Court would have found that there was no clearly established authority informing Mr. Gallegos that he was acting beyond the outer perimeters of his police-like powers and those incident and necessary thereto.  In support of the argument that a district attorney has these powers, the Appellant referenced various authority, including a Tenth Circuit case, Rex v. Teeples, 753 F.3d 840 (10th Cir. 1985). There, the Court gave qualified immunity to a district attorney even though, in a similar § 1983 action, he was alleged to have violated the constitutional rights of a criminal suspect by obtaining an involuntary confession.  Moreover, Mr. Hatcher argued the case of Buckley v. Fitzsimmons, 509 U.S. 259 (1993), another § 1983 claim in which a criminal suspect claimed the subject district attorney fabricated evidence to support a criminal prosecution before determining probable cause existed and gave defamatory statements about the criminal suspect at a press conference.  The district attorney, in Buckley, argued he was entitled to absolute immunity.  The Court ruled that absolute immunity is preserved only for acts undertaken by district attorneys in the judicial phase of either the prosecution of crimes or in the civil representation of the county he represents.  The Supreme Court, however, did recognize that a district attorney has investigative or “police-like” powers and preserved the defense of qualified immunity for the exercise thereof.


In the Tenth Circuit argument, it was asserted that because district attorneys in New Mexico are constitutionally defined as the “chief law officer” of the county and because they have statutory duties to not only enforce the law but have an obligation to keep public roads free of obstruction as one of their “legitimate job related functions” (NMSA 1978 § 67-7-1), they are entitled to a qualified immunity analysis under the facts of this case.  It was stressed that if the district attorney was allowed qualified immunity under the circumstances of the Buckley v. Fitzsimmons case, there was no difference in principle for at least allowing Mr. Gallegos the opportunity to pursue this defense in the present case because these acts involving the exercise of police-like powers, were arguably within the scope of his powers.


The argument was made before a three-judge panel, specifically Judges Harris Hartz, Scott Matheson, Jr., and Jerome Holmes.  In terms of the scope of authority test as a gateway into a qualified immunity defense, this case is one of first impression in the Tenth Circuit.  A decision is likely within six to nine months.  (See attached link to the Brief in Chief, Response brief by counsel for Mr. Stanley, and Reply brief on behalf of Mr. Gallegos).