The Tenth Circuit Court of Appeals, in a lead opinion by Judge Hartz with concurring opinions by Judge Holmes and Judge Matheson, reversed the lower court denial of summary judgment on behalf of Donald Gallegos, the District Attorney for the Eight Judicial District Court, State of New Mexico, on qualified immunity grounds. Mr. Gallegos was sued by David Stanley, who owns property in the White Peak area of northern New Mexico, for actions taken in August 2011. In a dispute with the Plaintiff over the public or private nature of a particular road, Mr. Gallegos accompanied by various individuals, including Colfax County deputy sheriffs, removed a gate and other obstructions placed by Stanley. Plaintiff brought suit against Mr. Gallegos and others for, among other claims, violations of his Fourth, Fifth, and Fourteenth Amendment rights to be protected from the unlawful seizure of personal property and in creating a public right of way without due process of law. The claims were for individual capacity liability against Mr. Gallegos under 42 U.S.C. § 1983.
Mr. Gallegos filed a Motion for Summary Judgment claiming entitlement to dismissal under principles of qualified immunity. The federal district court denied this under authority of the Fourth Circuit Court of Appeals decision in In Re: Allen, 106 F.3d 582 (4th Cir. 1997), which outlined a scope of authority exception to the entitlement of qualified immunity. That decision stands for the principle that when a public official acts outside the scope of his or her authority, as determined by State or other law, the protection of qualified immunity developed through Harlow v. Fitzgerald and its progeny is not available. Judge Hartz’ opinion, reversing the lower court, even assuming that test is recognized by the Tenth Circuit, held that Mr. Gallegos was not clearly acting outside the scope of his authority and is entitled to a full qualified immunity analysis upon remand. The opinion embraces the principle that actions taken by a district attorney which are of a law enforcement nature, are considered within his scope and authority, at least for purposes of pursuing the protection of qualified immunity. The case, particularly with the two concurring opinions, leaves open for further consideration the availability of the scope of authority exception to qualified immunity within the Tenth Circuit.
The case was argued by Scott Hatcher. Emma Weber and Mark Cox assisted in the briefing. Stanley has filed a Petition for En Banc review.
Attached is the Opinion dated March 17, 2017.