Did the state appellate court err in failing to apply the standards set forth in federal case law regarding 42 U.S.C. § 1983 and the qualified immunity defense thereto

QUESTIONS PRESENTED On May 4, 2013, Respondent Debra Gallegos was stopped at a DWI checkpoint in New Mexico. Petitioner Charles Vernier, a New Mexico State Police Officer, arrested Gallegos after observing that Gallegos performed poorly on standardized field sobriety tests. Vernier also ordered that Gallegos’s blood be drawn to test it for drugs. Gallegos alleges that this blood draw violated her clearly established rights under the Fourth Amendment. In his summary judgment motion below, Vernier asserted, as a matter of undisputed material fact, that after the arrest he “read Ms. Gallegos New Mexico’s Implied Consent Law, and she agreed to be tested.” Gallegos did not specifically controvert this assertion of fact in the District Court—subsequently, the District Court granted Vernier’s motion for summary judgment. The New Mexico Court of Appeals reversed the grant of summary judgment on Gallegos’s Fourth Amendment unlawful search claim related to the blood draw. In so doing, the state appellate court charged Vernier with the burden of proving—by clear and convincing evidence—that Gallegos did not consent to the blood draw, in contravention of well-established federal case law placing the burden of disproving consent upon the plaintiff. Additionally, relying primarily on one Tenth Circuit case, the appellate court found that Vernier violated a clearly established right when he ordered hospital staff to draw Gallegos’s blood. The New Mexico Supreme Court then denied certiorari. The questions presented are: 1. Did the state appellate court err in failing to apply the standards set forth in federal case ii QUESTIONS PRESENTED — Continued law regarding 42 U.S.C. § 1983 and the qualified immunity defense thereto, particularly as to the questions of: a) Who bears the burden of showing whether or not a plaintiff consented to an allegedly unlawful search (exacerbating a longdormant circuit split on this issue); and b) Whether the constitutional right at issue was “clearly established” where the Tenth Circuit opinion cited by the state court below was not sufficiently particularized to the facts of this case? 2. Did the state appellate court err in reversing the District Court’s grant of qualified immunity where, as of May 4, 2013, it was not clearly unlawful for a police officer to order a blood draw under an implied-consent statute? 3. For purposes of qualified immunity, can a federal court of appeals decision constitute clearly established law?