A woman called the Albuquerque Police Department complaining that she heard a female neighbor yelling at a young child and beating the child in the neighbor’s back yard. She did not see anything due to a high fence.

Officer Debra Romero responded to the residence. Joseph Lundstrom answered the door. Lundstrom requested identification. Romero pointed to her badge. Romero ordered Lundstrom and his girlfriend, Jane Hibner to leave the house. Lundstrom asked why she was present and told her there was no child in the house. She pulled her gun. ¹ Hibner, the only other person in the house got between Lundstrom and Romero. Romero continued to point her gun at Hibner for a short while. Hibner left the house and was handcuffed by the officers. Lundstrom called 911 to assure himself of Romero’s identity. The operator assured him that Romero was an officer and asked him to exit the house. He did so with his hands raised He was handcuffed injured, and put in the police car. The police searched his house. No child was found. They were released without charges and sued for violations of the Fourth Amendment.

The police filed a motion for summary judgment which was granted and appealed. The defendants claimed that they had qualified immunity. Peace officers have qualified immunity against a civil rights suits unless the plaintiff can show that their constitutional rights were violated and that such rights were clear at the time of the incident. The Tenth Circuit has ruled that for a right to be clear it must be supported either by Tenth Circuit or U. S. Supreme Court precedent. In order to win the plaintiffs had to show that their constitutional rights were violated and that the state of the law was clear at the time of the incident. The Tenth Circuit ruled that the initial detention and the use of the gun was legal. While it was a search it was reasonable in light of the officer’s fear. Checking on the welfare of the child is part of the officers functions “community caretaking functions.” The officer pulled the gun in order to check on the item in Lundstrom’s hand which was a phone not a gun. But the court found that the handcuffing of Hibner, the surrounding of the house, the order for Lundstrom to exit the house, the handcuffing of Lundstrom were clear violations of the law supported by United States Supreme Court and Tenth Circuit precedents and therefore the claim of qualified immunity fails and the lower court decision was reversed. The Tenth Circuit relied upon the lack of probable cause to arrest them and the lack of reasonable suspicion to detain them. The original call said that a woman (and therefore not Lundstrom) was abusing the child. Prior to handcuffing Hibner the police had a chance to verify any suspicions by questioning her and they did not. Also they found no evidence that a child was in the house. When the original caller was told that there was not a child in the house she admitted that she may have been wrong about the location but the police continued to detain Lundstrom and Hibner.

German Ordino-Ortega was sentenced to 60 months in the Federal prison for being unlawfully present in the united States following deportation. The sentence was based on a base offense level of eight and an 16-level enhancement for having a prior conviction for a crime of violence.

However, the Fifth Circuit Court of Appeals ruled that a conviction for injury to a child under the Texas Penal Code did not qualify as a crime of violence. A crime of violence, according to the comment to Sentencing Guideline Section 2L1.2 is one that either is on “a list of enumerated crimes or ‘any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.’”

But under Texas law injury to a child can be committed without the use, attempted use, or threatened use of physical force. For example it can be committed by an act of omission or by placing poison in a child’s food. Neither of these would qualify as an act of violence under the Guidelines. Therefore an act of violence is not an element of the offense and cannot be used to aggravate the sentence.