Tenth Circuit Reinforces the “Rediscovered-Memory” Sham-Affidavit Doctrine:
A Detailed Commentary on Gabaldon v. New Mexico State Police (10th Cir. 2025)

1. Introduction

Case name: Craig Gabaldon v. New Mexico State Police, Kevin Smith, and Kurtis Ward
Court: United States Court of Appeals for the Tenth Circuit
Decision date: 11 June 2025
Panel: Tymkovich, McHugh, & Carson, JJ. (opinion by Carson, J.)
Procedural posture: Appeal from a District of New Mexico order that (1) granted a motion for spoliation sanctions, (2) struck the plaintiff’s affidavit as a “sham,” and (3) awarded partial summary judgment to the defendants on constitutional claims via qualified immunity.

Craig Gabaldon (“Plaintiff”), a motorcyclist and alleged member of the Bandidos Motorcycle Club, brought federal §1983 and state-law claims alleging that New Mexico State Police officers Smith and Ward stopped and arrested him not for observed traffic violations but in retaliation for displaying Bandidos insignia. During discovery he repeatedly professed an inability to remember the critical traffic events. At summary judgment—after watching a patrol-car video that had been disclosed months earlier—he filed a new affidavit asserting perfect recollection and denying any traffic violations. The district court struck that affidavit, found spoliation regarding burned Bandidos gear, and entered summary judgment for the defendants on qualified-immunity grounds. The Tenth Circuit affirmed in full.

2. Summary of the Judgment

• Spoliation: No abuse of discretion in the district court’s finding that plaintiff destroyed evidence (club jacket & patches) and in postponing any sanction until trial.
• Sham Affidavit: The three-factor test from Franks v. Nimmo confirmed that Gabaldon’s affidavit was a “sham” because (i) he was cross-examined at deposition, (ii) the video was not newly discovered, and (iii) the affidavit did not clarify confusion but contradicted unequivocal deposition testimony.
• Qualified Immunity & Summary Judgment: Absent the stricken affidavit, undisputed facts established reasonable suspicion for the traffic stop, probable cause for a DWI arrest, and objectively reasonable force; hence the officers were entitled to qualified immunity.
• Holding: The district court’s orders are affirmed; litigants cannot defeat summary judgment by “rediscovered memory” affidavits that contradict earlier sworn forgetfulness.

3. Analysis

3.1 Precedents Cited

• Franks v. Nimmo, 796 F.2d 1230 (10th Cir. 1986) – Origin of the Tenth Circuit’s three-part sham-affidavit test.
• Law Co. v. Mohawk Constr., 577 F.3d 1164 (10th Cir. 2009) – Reaffirmed that contradictory affidavits may be disregarded when they create sham fact issues.
• United States v. Botero-Ospina, 71 F.3d 783 (10th Cir. 1995) – Objective test for reasonable suspicion in traffic stops.
• Delaware v. Prouse, 440 U.S. 648 (1979) & Whren v. United States, 517 U.S. 806 (1996) – Traffic stop legality based on observed violations, irrespective of subjective motive.
• Ralston v. Smith & Nephew Richards, 275 F.3d 965 (10th Cir. 2001) – Applied Franks factors to conflicting testimony.
• Xyngular v. Schenkel, 890 F.3d 868 (10th Cir. 2018) – Standard for appellate review of spoliation sanctions.

These cases collectively supplied the doctrinal scaffold for (a) striking the affidavit, (b) assessing spoliation sanctions, and (c) measuring reasonable suspicion.

3.2 Legal Reasoning

1. Spoliation Discretion. The Circuit emphasized the deferential “abuse of discretion” standard and found no evidence that the district court had actually imposed any adverse inference. Plaintiff’s argument was therefore “factually hollow.”
2. “Rediscovered-Memory” Sham Affidavit. Applying the Franks factors:
   • (1) Cross-examination: Plaintiff was deposed for several hours and expressly claimed memory failure.
   • (2) Access to evidence: The dash-cam video had been produced seven months before deposition; therefore the affidavit was not based on newly discovered evidence.
   • (3) Lack of confusion: Plaintiff admitted he understood the deposition questions; his later claims were “forgetfulness” masquerading as new recollection, not clarification.
   The court labeled the affidavit “a sham” because allowing it would “undermine the discovery process.”
3. Qualified Immunity. Without the affidavit, unrebutted facts (crossing double yellow lines, speeding, failure to signal, odor of alcohol, slurred speech) generated reasonable suspicion and probable cause. Objective reasonableness under Graham v. Connor supported the force used.

3.3 Impact on Future Litigation

• Affidavit Strategy: Litigants in the Tenth Circuit now face a clearer barrier to submitting “memory-refreshed” affidavits after professed ignorance in discovery. Counsel must ensure that new affidavits are tethered to genuinely new evidence or an explained confusion, not mere recollection.
• Discovery Integrity: The opinion fortifies the integrity of depositions by dis-incentivising tactical amnesia. District courts may confidently strike late-stage contradictions without fear of reversal.
• Spoliation Timing: Courts may defer crafting sanctions until trial, and such deferral is unlikely to be viewed as an abuse of discretion.
• Traffic-Stop Litigation: By reiterating that subjective motive is irrelevant when objective traffic violations exist, the case curtails attempts to convert traffic stops into First-Amendment retaliation suits absent concrete evidence negating probable cause.

4. Complex Concepts Simplified

• Sham Affidavit Doctrine: A rule that prevents a party from creating a “fake” factual dispute by submitting an affidavit contradicting earlier sworn testimony, unless the contradiction is explained by confusion or truly new evidence.
• Reasonable Suspicion vs. Probable Cause: “Reasonable suspicion” is a low threshold—specific, articulable facts that suggest wrongdoing—allowing an officer to stop someone briefly. “Probable cause” is a higher threshold—facts that would make a reasonable person believe a crime has been committed—required for arrest.
• Qualified Immunity: A legal shield that protects government officials from personal liability unless they violate clearly established statutory or constitutional rights.
• Spoliation: The destruction or alteration of evidence that a party had a duty to preserve. Courts may impose sanctions ranging from evidence exclusion to default judgment.

5. Conclusion

The Tenth Circuit’s decision in Gabaldon v. New Mexico State Police crystallizes a pragmatic rule: litigants cannot disclaim memory during depositions and then “remember everything” at summary judgment unless genuinely new evidence emerges. By robustly applying Franks, the court protects the discovery process, ensures fair play, and provides district courts with firm guidance to police sham affidavits. The ruling also affirms that objective traffic violations trump alleged retaliatory motives and that deferred spoliation sanctions are permissible. Collectively, the opinion strengthens the procedural spine of civil litigation in the Tenth Circuit and signals to practitioners that strategic forgetfulness is a perilous gamble.