Police Inaction in an Active-Shooter Standoff Is Not “Danger Creation”; New Mexico’s Duty-to-Investigate Liability Is Barred Where Officers Are Unable to Act Due to Immediate Deadly Threat

1. Introduction

Salcido v. City of Las Vegas (10th Cir. Mar. 17, 2026) arises from an hours-long standoff in Las Vegas, New Mexico, during which Alejandro Alirez shot Cristal Cervantes and her grandfather inside their home while livestreaming on Facebook. Law enforcement arrived as shots were being fired, took cover, established a perimeter, evacuated neighbors, monitored the livestream, and later used negotiators and a tactical plan that ultimately led to Alirez’s surrender. Cristal died.

Plaintiffs Angel Salcido (personal representative of Cristal’s wrongful-death estate) and Wanda Martinez (Cristal’s mother) sued multiple municipal, county, and state entities and officers under (1) 42 U.S.C. § 1983 for substantive-due-process violations and (2) New Mexico tort law theories premised principally on an alleged statutory “duty to investigate.” The central legal issues were:

  • Federal: Whether officers’ failure to enter/rescue during an active shooter standoff constitutes an affirmative act under the “danger-creation” doctrine sufficient to overcome the general rule that the Due Process Clause does not impose a duty to protect against private violence.
  • State: Whether New Mexico’s statutory duty to investigate (N.M. Stat. Ann. § 29-1-1), as incorporated into the New Mexico Tort Claims Act waiver (N.M. Stat. Ann. § 41-4-12), creates liability for not intervening sooner, and whether officers’ inability to act due to ongoing deadly threat defeats causation/breach.

2. Summary of the Opinion

The Tenth Circuit affirmed summary judgment for all defendants.

  • § 1983 / Qualified immunity: Plaintiffs failed to show a constitutional violation. The court held that the “danger-creation” doctrine requires an affirmative act that creates or increases vulnerability to private violence; the alleged wrong here was inaction (not rescuing or intervening sooner), which is insufficient under Tenth Circuit law. Because no constitutional violation was shown, qualified immunity applied.
  • New Mexico claims: Even assuming a statutory duty to investigate, the record showed Alirez posed an immediate and continuing deadly threat that prevented officers from acting as plaintiffs demanded. Under New Mexico Tort Claims Act causation principles and traditional tort excuses (including Restatement (Second) of Torts § 288A), defendants could not be held liable for failing to investigate/intervene in the manner sought. The derivative claims for negligent training/supervision/retention and loss of consortium failed as contingent on an underlying tort.

A concurrence by Judge Hartz urged district courts to consider dismissing supplemental state-law claims without prejudice when federal claims are dismissed before trial, citing comity and judicial economy.

3. Analysis

3.1. Precedents Cited

A. Due Process: no general duty to protect against private violence

  • DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189 (1989): The cornerstone. The court relied on DeShaney for the rule that a state actor’s failure to protect an individual from private violence “simply does not” violate due process, subject only to narrow exceptions.

B. The two exceptions: special relationship and danger creation

  • Armijo ex rel. Chavez v. Wagon Mount Pub. Schs., 159 F.3d 1253 (10th Cir. 1998): Provided the Tenth Circuit’s framing of the two exceptions and limited the “special relationship” doctrine to involuntary restraint.
  • Gray v. Univ. of Colo. Hosp. Auth., 672 F.3d 909 (10th Cir. 2012): Reinforced that special relationship generally arises in incarceration, institutionalization, or involuntary foster care; also used to underscore that inaction “in the face of a known danger” is not enough for danger creation.

C. Danger-creation doctrine requires affirmative conduct

  • Robbins v. Oklahoma, 519 F.3d 1242 (10th Cir. 2008): Cited for the proposition that danger creation is triggered when the state “affirmatively acts” to create or increase vulnerability to private violence.
  • Currier v. Doran, 242 F.3d 905 (10th Cir. 2001): Plaintiffs’ key authority. The court distinguished it: the inaction (failure to investigate abuse) mattered there only because it was “viewed in the general context” of affirmative conduct (removing children and placing them with an abuser).
  • T.D. v. Patton, 868 F.3d 1209 (10th Cir. 2017): Used to clarify the limiting principle of Currier: inaction supports danger creation only when “coupled with” affirmative conduct that precipitates or heightens the danger.
  • Est. of B.I.C. v. Gillen, 710 F.3d 1168 (10th Cir. 2013) and Graham v. Indep. Sch. Dist. No. I-89, 22 F.3d 991 (10th Cir. 1994): Cited to emphasize that “mere inaction,” even with knowledge of danger, does not satisfy the doctrine.

D. Qualified immunity not defeated by statutory/policy violations

  • Tanberg v. Sholtis, 401 F.3d 1151 (10th Cir. 2005) and Davis v. Scherer, 468 U.S. 183 (1984): Supported the rejection of plaintiffs’ attempt to convert alleged statutory or policy failures into a federal constitutional violation.

E. New Mexico duty-to-investigate and NMTCA causation/limits

  • Schear v. Board of County Commissioners, 687 P.2d 728 (N.M. 1984): Plaintiffs relied on Schear to argue § 29-1-1 is actionable. The panel distinguished it factually: unlike in Schear (no response at all), officers here did investigate “in some fashion.”
  • Ruff v. Bd. of Regents of Univ. of N.M., No. 16-1140, 2018 WL 565705 (D.N.M. Jan. 24, 2018): Cited for the view that § 29-1-1 does not require investigation in a particular manner—reinforcing the court’s skepticism toward a “reasonable investigation” gloss.
  • Methola v. Eddy County, 622 P.2d 234 (N.M. 1980): Central to the state-law holding. The court quoted Methola for the principle that claims are not authorized where the state “may not have been able to act for some specific reason.”
  • Heath v. La Mariana Apartments, 180 P.3d 664 (N.M. 2008) and Jackson v. Sw. Pub. Serv. Co., 349 P.2d 1029 (N.M. 1960): Anchored the use of Restatement-style excuses/justifications to rebut statutory-duty negligence theories.
  • Restatement (Second) of Torts § 288A (A.L.I. 1965): Provided the doctrinal “excuse” rule: no liability for violating a legislative duty when compliance would involve greater risk of harm to the actor or others—matched to the standoff’s active gunfire.

F. Procedure and appellate posture

  • Duda v. Elder, 7 F.4th 899 (10th Cir. 2021), EagleMed LLC v. Cox, 868 F.3d 893 (10th Cir. 2017), SEC v. Pros Int'l, Inc., 994 F.2d 767 (10th Cir. 1993), Carabajal v. City of Cheyenne, 847 F.3d 1203 (10th Cir. 2017): Cited for the de novo standard of review and viewing facts in the nonmovant’s favor, including in qualified-immunity summary judgment.
  • Est. of Redd v. Love, 848 F.3d 899 (10th Cir. 2018) and Puller v. Baca, 781 F.3d 1190 (10th Cir. 2015): Provided the two-prong qualified immunity framework.
  • Richison v. Ernest Grp., Inc., 634 F.3d 1123 (10th Cir. 2011): Supported affirmance “on any basis supported by the record,” used to extend the “unable to act due to deadly threat” rationale across defendants.

G. Concurrence: supplemental jurisdiction prudence

  • United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966): Quoted for the classic admonition to avoid “needless decisions of state law” and to dismiss state claims when federal claims fall out before trial.
  • Tufaro v. Okla. ex rel. Bd. of Regents, 107 F.4th 1121 (10th Cir. 2024): Cited (in dissent in part) as a recent reminder of the same comity/economy principles.

3.2. Legal Reasoning

A. Why the danger-creation theory failed

The court treated plaintiffs’ federal theory as a bid to recharacterize non-rescue as an “affirmative act.” It rejected that reframing as inconsistent with settled Tenth Circuit doctrine. The key steps were:

  1. Identify the baseline rule: Under DeShaney, there is generally no due-process duty to protect from private violence.
  2. Eliminate the special-relationship exception: Cristal was not involuntarily restrained by the state (no custody-like relationship under Armijo and Gray).
  3. Test danger creation for affirmative conduct: The court examined whether officers “affirmatively acted” to create/increase danger (Robbins).
  4. Conclude the harm’s source and timing were private: On plaintiffs’ version, Alirez shot Cristal essentially immediately and then again moments later. The court’s causation-like logic here is practical: the peril existed because of Alirez, and the later perimeter/evacuation/tactical staging did not create or increase the danger already being inflicted inside.
  5. Refuse to convert omissions into acts: Invoking Est. of B.I.C., Graham, and Gray, the panel held that “mere inaction” is not enough.
  6. Limit Currier: The court read Currier narrowly, as a case where inaction mattered only because it was embedded within and made dangerous by affirmative state placement decisions—an element absent here (as underscored by T.D.).
  7. Fence off statutory/policy duties from constitutional analysis: Even if departmental policy or state statute urged more urgent action, that does not itself create a federal due-process violation (Tanberg; Davis).

Because the court found no constitutional violation at prong one, it did not need to reach whether the right was “clearly established.”

B. Why the New Mexico duty-to-investigate theory failed

Plaintiffs attempted to use N.M. Stat. Ann. § 29-1-1 (duty to investigate) and N.M. Stat. Ann. § 41-4-12 (NMTCA waiver for failure to comply with statutory duties) to create negligence liability for not entering sooner. The panel sidestepped the hardest interpretive question—whether § 29-1-1 imposes a duty to investigate “reasonably” as opposed to merely “in some fashion”—because, even assuming an actionable duty, traditional tort limitations defeated liability on this record:

  • “Unable to act” limitation from Methola: The panel treated ongoing, active gunfire at officers (including rounds striking patrol cars) as precisely the kind of “specific reason” that prevents the state from acting.
  • Traditional tort “excuse” doctrine: By importing Restatement (Second) of Torts § 288A through New Mexico authorities (Heath; Jackson), the court reasoned that compliance with a statutory duty is excused where compliance would create greater risk of harm to officers or others. Entering a home while pinned down by rifle fire fit that description.
  • Appellate forfeiture mattered: The panel emphasized plaintiffs did not meaningfully confront the district court’s “unable to act” analysis. That failure cemented affirmance as to at least the County defendants, and the same record supported affirmance for City and State defendants as well (using Richison).

C. Why the remaining state-law claims fell

Plaintiffs’ negligent training/supervision/retention and loss of consortium claims were treated as derivative of an underlying actionable tort at the scene. Once the negligent-investigation theory failed, the remaining theories had no viable predicate.

3.3. Impact

  • Federal constitutional claims in standoff/non-rescue scenarios: The decision fortifies a clear boundary: monitoring, perimeters, evacuation, and delayed tactical entry during an active shooter event are not easily reframed as “affirmative acts” that create danger. Future plaintiffs in the Tenth Circuit will need to plead and prove state conduct more akin to Currier/T.D.—i.e., an affirmative state action that materially increases vulnerability to the private actor.
  • Clarification of Currier’s role: The panel’s reading reduces the risk that “failure to investigate” or “failure to act” becomes a stand-alone affirmative act under danger creation, limiting that argument to contexts where inaction is tethered to an affirmative placement/restraint decision.
  • New Mexico NMTCA statutory-duty litigation: The opinion signals that, even where § 29-1-1 can be invoked, plaintiffs must contend with “unable to act”/excuse principles grounded in Methola and Restatement § 288A. Practically, officer-safety exigencies can defeat statutory-duty negligence theories when intervention would predictably increase risk.
  • Forum/comity implications (concurrence): Judge Hartz’s concurrence encourages a procedural discipline: once federal claims are dismissed pretrial, federal courts should consider dismissing supplemental state claims without prejudice so state courts can decide unsettled state-law questions. While not controlling, it may influence district court practice, especially in close NMTCA statutory-duty cases.

4. Complex Concepts Simplified

Qualified immunity
A defense that shields government officials from damages under § 1983 unless the plaintiff shows (1) a constitutional violation and (2) that the violated right was clearly established at the time.
Substantive due process (failure-to-protect)
The Due Process Clause usually limits what the government may do to you; it generally does not require the government to protect you from harm by private persons.
Special relationship
A narrow exception where the government has taken custody or otherwise involuntarily restrained a person so that the person cannot protect themselves (e.g., prison, involuntary commitment). Then the government may have an affirmative duty to protect.
Danger-creation doctrine
Another narrow exception: the government can be liable if it affirmatively acts in a way that creates or increases a person’s vulnerability to violence by a private actor. Pure inaction is generally not enough in the Tenth Circuit.
NMTCA waiver for statutory duties
New Mexico’s Tort Claims Act generally preserves governmental immunity but waives it for certain law-enforcement misconduct, including failure to comply with duties established by statute (here, the duty to “investigate” crimes).
Excuse/justification for statutory-duty negligence (Restatement § 288A)
Even when a statute imposes a duty, tort law may excuse noncompliance if following the statute would create a greater risk of harm—such as ordering officers into a home while under active gunfire.
Supplemental jurisdiction
Federal courts can hear state-law claims that accompany federal claims. But when federal claims drop out early, courts often dismiss state claims without prejudice so state courts can decide them.

5. Conclusion

Salcido v. City of Las Vegas reaffirms two limiting principles with practical bite. First, under Tenth Circuit law, law-enforcement nonfeasance during private violence—even when tragic—does not become “danger creation” absent affirmative conduct that materially increases vulnerability. Second, New Mexico statutory-duty theories premised on the duty to investigate may fail where officers are effectively unable to act because compliance would impose grave risks during an ongoing deadly threat, consistent with Methola and traditional tort excuse doctrines. The decision thus strengthens doctrinal guardrails against converting tactical restraint in an active shooter standoff into constitutional tort liability, while also signaling a robust “unable to act” defense to state statutory-duty negligence claims in exigent, high-risk encounters.