{ "id": 4076964, "name": "JOSE LUIS LOYA, Plaintiff, v. GLEN GUTIERREZ, Commissioned Officer of Santa Fe County, Defendant/Third-Party Plaintiff-Appellant, v. COUNTY OF SANTA FE, Third-Party Defendant-Appellee", "name_abbreviation": "Loya v. Gutierrez", "decision_date": "2014-02-07", "docket_number": "No. 34,447; Docket No. 32,405", "first_page": "510", "last_page": "518", "citations": [ { "type": "official", "cite": "2014-NMCA-028" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "1998-NMCA-090", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 834277 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 2, 26" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0445-01" ] }, { "cite": "2010 WL 1257827", "category": "reporters:specialty_west", "reporter": "WL", "year": 2010, "pin_cites": [ { "page": "*3" } ], "opinion_index": 0 }, { "cite": "438 F.3d 483", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 996963 ], "year": 2006, "pin_cites": [ { "page": "486-87" } ], "opinion_index": 0, "case_paths": [ "/f3d/438/0483-01" ] }, { "cite": "930 F.2d 1502", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10548292 ], "year": 1991, "pin_cites": [ { "page": "1503-04" } ], "opinion_index": 0, "case_paths": [ "/f2d/930/1502-01" ] }, { "cite": "1993 WL 375746", "category": "reporters:specialty_west", "reporter": "WL", "pin_cites": [ { "page": "*1-3" } ], "opinion_index": 0 }, { "cite": "28 U.S.C. \u00a7 2680", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2006, "pin_cites": [ { "page": "(h)" } ], "opinion_index": 0 }, { "cite": "2004-NMSC-005", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1428003 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 1-3" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0115-01" ] }, { "cite": "293 P.3d 184", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMCERT-003", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "276 P.3d 252", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMCA-053", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4187978 ], "pin_cites": [ { "page": "\u00b6 49" } ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0707-01" ] }, { "cite": "2011-NMCA-008", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4249929 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/149/0198-01" ] }, { "cite": "2001-NMCA-036", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352358 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0559-01" ] }, { "cite": "105 N.M. 731", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1598948 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/105/0731-01" ] }, { "cite": "1987-NMCA-054", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0 }, { "cite": "148 N.M. 426", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4247427 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/148/0426-01" ] }, { "cite": "2006-NMSC-031", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3670086 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0030-01" ] }, { "cite": "116 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727716 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/116/0001-01" ] }, { "cite": "1993-NMCA-059", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0 }, { "cite": "120 N.M. 47", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559015 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/120/0047-01" ] }, { "cite": "1995-NMCA-056", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6\u00b6 14-19" } ], "opinion_index": 0 }, { "cite": "106 N.M. 472", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 707986 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/106/0472-01" ] }, { "cite": "1987-NMSC-107", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0 }, { "cite": "1998-NMSC-020", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 834209 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 28" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0401-01" ] }, { "cite": "2009-NMSC-013", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243054 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 9" }, { "parenthetical": "alteration, internal quotation marks, and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0024-01" ] }, { "cite": "309 P.3d 101", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMCERT-008", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "293 P.3d 943", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMCA-012", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4191891 ], "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm-app/3/0265-01" ] }, { "cite": "2009-NMCA-081", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4244385 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0717-01" ] }, { "cite": "1998-NMSC-046", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827320 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0396-01" ] }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 3, "year": 1996, "opinion_index": 0 } ], "analysis": { "cardinality": 960, "char_count": 22376, "ocr_confidence": 0.763, "pagerank": { "raw": 5.7452063174764795e-08, "percentile": 0.3596522422735843 }, "sha256": "35a63103d575af357f09fc3c90fa1c4f1d0aeef9677f0e743c207278fbcca041", "simhash": "1:7964b7a33b4f7759", "word_count": 3599 }, "last_updated": "2023-07-14T21:28:15.201030+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LINDA M. VANZI, Judge", "RODERICK T. KENNEDY, Chief Judge", "CYNTHIA A. FRY, Judge" ], "parties": [ "JOSE LUIS LOYA, Plaintiff, v. GLEN GUTIERREZ, Commissioned Officer of Santa Fe County, Defendant/Third-Party Plaintiff-Appellant, v. COUNTY OF SANTA FE, Third-Party Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nVANZI, Judge.\n{1} In this case, the issue before us is whether the County of Santa Fe (the County) has a duty to defend or indemnify a tribal police officer who, while exercising his authority as a commissioned County sheriffs deputy, unlawfully arrested a non-Indian person within the exterior boundaries of the Pueblo of Pojoaque (the Pueblo). The district court concluded that the County did not have a duty to defend and/or indemnify Officer Glen Gutierrez because he was not a \u201cpublic employee\u201d or \u201claw enforcement officer\u201d of a \u201cgovernmental entity\u201d as those terms are defined by the New Mexico Tort Claims Act (the TCA), NMSA 1978, \u00a7\u00a7 41-4-1 to -30 (1976, as amended through 2013). See \u00a7 41-4-3. We agree with the district court and affirm.\nBACKGROUND\n{2} The parties do not dispute the facts. The essential allegations in the underlying complaint are that Appellant Officer Gutierrez, while on official duty for the Pueblo police department, made a traffic stop of Plaintiff Jose Luis Loya\u2019s vehicle. The stop occurred on U.S. Highway 84/285, a state-maintained road within the exterior boundaries of the Pueblo. At the time of the stop, Officer Gutierrez was dressed in his full tribal police uniform, displaying his tribal badge of office, and driving his tribally issued police vehicle. In addition to acting under tribal law, Officer Gutierrez was also on duty as a duly commissioned Santa Fe County Deputy Sheriff, which gave him the authority to arrest, charge, and jail non-Indians, such as Loya, for violations of New Mexico state law.\n{3} Ultimately, Officer Gutierrez, along with two other tribal officers, arrested Loya for reckless driving under NMSA 1978, Section 66-8-113 (1987) and took him to the tribal police department for processing. Loya was subsequently transported to the Santa Fe County jail and later prosecuted for the offense in the Santa Fe County Magistrate Court.\n{4} As a result of the incident, Loya filed a complaint against Officer Gutierrez and brought claims against him under 42 U.S.C. \u00a7 1983 (1996) for false arrest, malicious prosecution, and use of excessive force. In his answer to Loya\u2019s complaint, Officer Gutierrez filed a third-party declaratory judgment action against the County, stating that the County was required to defend and indemnify him in the matter. On cross-motions for summary judgment, and after hearing argument from the parties, the district court ruled that the County did not have a duty to defend and/or indemnify Officer Gutierrez. The court based its decision on the grounds that the issue was governed by the TCA and that to receive the benefit of the defense and indemnification provisions of the TCA, Officer Gutierrez had to be a \u201cpublic employee\u201d or \u201claw enforcement officer\u201d of a \u201cgovernmental entity\u201d as those terms are defined. The district court found that Officer Gutierrez was not a full-time or part-time salaried officer employed by the County, but rather, he was a police officer hired, trained, supervised, subject to discipline, and employed by the Pueblo. Further, the court found that the Pueblo is a sovereign Indian tribe that is not a \u201cgovernmental entity\u201d as defined by the TCA. Therefore, the district court ruled that the County had no duty to defend and/or indemnify Officer Gutierrez. This appeal timely followed.\nDISCUSSION\nStandard of Review\n{5} \u201cSummary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.\u201d Self v. United Parcel Serv., Inc., 1998-NMSC-046, \u00b6 6, 126 N.M. 396, 970 P.2d 582. We review the grant of summary judgment under a de novo standard of review. Id.; City of Albuquerque v. BPLW Architects & Eng'rs, Inc., 2009-NMCA-081, \u00b6 7, 146 N.M. 717, 213 P.3d 1146 (holding that \u201cif no material issues of fact are in dispute and an appeal presents only a question of law, we apply de novo review\u201d).\n{6} In addition, we review the district court\u2019s interpretation of the TCA as a question of law subject to de novo review. Am. Fed\u2019n of State, Cnty. & Mun. Emps., Council 18 v. City of Albuquerque, 2013-NMCA-012, \u00b6 6, 293 P.3d 943, cert. quashed, 2013-NMCERT-008, 309 P.3d 101. \u201cIn construing a statute, our charge is to determine and give effect to the Legislature\u2019s intent.\u201d Marbob Energy Corp. v. N.M. Oil Conservation Comm\u2019n, 2009-NMSC-013, \u00b6 9, 146 N.M. 24, 206 P.3d 135. \u201cIn discerning the Legislature\u2019s intent, we are aided by classic canons of statutory construction, and we look first to the plain language of the statute, giving the words their ordinary meaning, unless the Legislature indicates a different one was intended.\u201d Id. (alteration, internal quotation marks, and citation omitted). \u201cWe will not depart from the plain wording of a statute, unless it is necessary to resolve an ambiguity, correct a mistake or an absurdity that the Legislature could not have intended, or to deal with an irreconcilable conflict among statutory provisions.\u201d Regents of Univ. of N.M. v. N.M. Fed\u2019n of Teachers, 1998-NMSC-020, \u00b6 28, 125 N.M. 401, 962 P.2d 1236.\nThe New Mexico Tort Claims Act\n{7} The TCA is the primary vehicle by which the state may be held liable for injuries caused by the negligence of its employees. The TCA entitles public employees to a legal defense provided by his or her employer or the state when a plaintiff alleges that the employee committed certain enumerated torts for which immunity has been waived, or if the employee violated the plaintiffs constitutional rights. See \u00a7 41-4-4(B). Similarly, a state employer must pay a judgment or a settlement entered against a public employee if the employee acted within the scope of his duties. See \u00a7 41-4-4 (D).\n{8} In this case, Loya\u2019s lawsuit against Officer Gutierrez alleges only violations of federally protected constitutional rights under 42U.S.C. \u00a7 1983. See \u00a7 41-4-4(A) (noting the state\u2019s immunity from tort liability and its exceptions). The parties agree that the question of whether the County must defend and/or indemnify Officer Gutierrez is governed by the TCA. Section 41-4-4(B) of the TCA requires that, unless an insurance carrier provides a defense, governmental entities shall provide a public employee a defense for:\n(2) any violation of property rights or any rights, privileges or immunities secured by the constitution and laws of the United States ... when alleged to have been committed by the public employee while acting within the scope of his duty.\nLikewise, the governmental entity must provide indemnification to a public employee who has been sued for damages. Section 41-4-4(D) provides:\nA governmental entity shall pay any settlement or any final judgment entered against a public employee for:\n(2) a violation of property rights or any rights, privileges or immunities secured by the constitution and laws of the United States . . . that occurred while the public employee was acting within the scope of his duty.\n{9} At issue is whether Officer Gutierrez, acting in his capacity as a commissioned County Sheriff\u2019s Deputy, is a \u201cpublic employee\u201d of a \u201cgovernmental entity\u201d entitled to the defense and indemnification provisions above. See \u00a7 41-4-4(B), (D). The TCA defines a \u201cpublic employee,\u201d in pertinent part, as \u201can officer, employee or servant of a governmental entity, excluding independent contractors!.]\u201d Section 41-4-3(F). This definition goes on to include fourteen categories of persons who are considered \u201cpublic employees,\u201d including, as we discuss further below, \u201claw enforcement officers\u201d and those working \u201con behalf or in service of a governmental entity in any official capacity!.]\u201d See \u00a7 41-4-3(F)(2), (3). A \u201cgovernmental entity\u201d means the State ofNew Mexico and its agencies, or any local public body and its agencies. See \u00a7 41-4-3(B), (C), (H). It does not include sovereign Indian pueblos and tribes.\n{10} Here, Officer Gutierrez seeks the benefit of a defense and/or indemnification for claims involving the conduct of law enforcement officers. Officer Gutierrez concedes that he is not a \u201claw enforcement officer\u201d within the meaning' of the TCA; however, he argues that he fits within another of the enumerated definitions of \u201cpublic employee.\u201d For the reasons that follow, while we agree that Officer Gutierrez is not a \u201claw enforcement officer\u201d within the meaning and definitions of the TCA, we disagree that he meets any alternate definition of a \u201cpublic employee.\u201d\nOfficer Gutierrez Is Not a \u201cLaw Enforcement Officer\u201d of a \u201cGovernmental Entity\u201d\n{11} As we have noted, the County\u2019s obligation to provide Officer Gutierrez a defense and/or indemnification arises only if he is a \u201cpublic employee\u201d of a \u201cgovernmental entity.\u201d And the TCA defines \u201cpublic employee\u201d to include law enforcement officers. Section 41-4-3(F)(2). In relevant part, Section 41 -4-3 (D) more precisely defines a \u201claw enforcement officer\u201d as\na full-time salaried public employee of a governmental entity, or a certified part-time salaried police officer employed by a governmental entity, whose principal duties under law are to hold in custody any person accused of a criminal offense, to maintain public order or to make arrests for crimes].]\nOur courts have construed this definition strictly. See, e.g., Silva v. State, 1987-NMSC-107, \u00b6 17, 106 N.M. 472, 745 P.2d 380 (holding that the secretary of corrections is not a \u201claw enforcement officer\u201d under the TCA); Coyazo v. State, 1995-NMCA-056, \u00b6\u00b6 14-19, 120 N.M. 47, 897 P.2d 234 (concluding that district attorneys and staff were not \u201claw enforcement officers\u2019\u2019); Dunn v. State ex rel. Taxation & Revenue Dep't, 1993-NMCA-059, \u00b6 11, 116 N.M. 1, 859 P.2d 469 (holding that the director of the New Mexico M otor V ehicle Department, who has statutory authority to make arrests, was not a law enforcement officer because the \u201cvast majority of [his] time and effort are involved in administrative matters\u201d (internal quotation marks omitted)).\n{12} Here, Officer Gutierrez agrees that he does not meet the definition of \u201claw enforcement officer\u201d under Section 41 -4-3(D). We nevertheless address this provision of the TCA because our analysis settles the present dispute with regard to the County\u2019s duty to defend and/or indemnify Officer Gutierrez. We start with the facts.\n{13} Officer Gutierrez was on duty as a full-time Pueblo tribal law enforcement officer, acting in his capacity as a commissioned Deputy Sheriff for the County, when he made the traffic stop of Loya\u2019s vehicle in September 2009. At the time of the stop, Officer Gutierrez was dressed in his tribal police uniform, including wearing his tribal badge, and driving his tribally issued police vehicle. Officer Gutierrez, assisted by two other tribal officers, ultimately arrested Loya for the misdemeanor crime of reckless driving under Section 66-8-113. Loya was taken to the tribal police department for processing and then transported to the Santa Fe County jail by another tribal officer.\n{14} As a result of the stop and arrest, Loya brought a complaint under 42 U.S.C. \u00a7 1983 against Officer Gutierrez, alleging that Officer Gutierrez \u201cviolently attacked [him]\u201d during the incident leading to the arrest and that Officer Gutierrez pinned Loya by his neck to his vehicle and then kicked him, causing Loya to have neck spasms and injuries. The complaint also asserted that Officer Gutierrez was a law enforcement and commissioned officer for the County and that he was \u201cacting under color of state law, in patrolling a state highway and enforcing state criminal statutes.\u201d\n{15} The above facts establish that Officer Gutierrez was performing traditional law enforcement duties when he stopped and arrested Loya. Moreover, the claims against Officer Gutierrez \u2014 unreasonable seizure and deprivation of liberty, prosecution without probable cause, and excessive force \u2014 can only be understood to come within Section 41-4-12\u2019s waiver ofimmunity for \u201claw enforcement officers.\u201d Section 41-4-12 provides:\nThe immunity granted pursuant to Subsection A of Section 41-4-4 .. . does not apply to liability for personal injury, bodily injury, wrongful death or property damage resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, defamation of character, violation of property rights or deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by law enforcement officers while acting within the scope of their duties.\n{16} Although Officer Gutierrez was exercising his authority as a commissioned County Sheriffs Deputy when he stopped and arrested Loya, the district court found \u2014 and Officer Gutierrez does not dispute \u2014 that he does not come within the TCA\u2019s definition of a \u201claw enforcement officer\u201d as that term is defined in Section 41-4-3(D). The district court found that Officer Gutierrez was neither a full-time nor part-time salaried officer employed by the County. The court further found that Officer Gutierrez was hired, trained, supervised, and subject to discipline by the Pueblo. In addition, Officer Gutierrez does not challenge the district court\u2019s finding that the Pueblo is a sovereign Indian tribe that is not a \u201cgovernmental entity\u201d as defined by the TCA. The district court therefore concluded that Officer Gutierrez was not a \u201claw enforcement officer\u201d within the plain language of the definition in the TCA. Accordingly, the TCA\u2019s employee defense and indemnification provisions were not available to him on this basis. Based on the undisputed facts, we affirm the district court\u2019s ruling in this regard.\nOfficer Gutierrez Is Not a \u201cPublic Employee\u201d Under Section 41-4-3F(3)\n{17} As we have discussed above, Officer Gutierrez freely admits that he does not meet Section 41-4-3(D)\u2019s definition of \u201claw enforcement officer,\u201d yet he seeks the benefit of a defense and/or indemnification by contending that he instead fits within another definition of a public employee under the TCA. In particular, he argues that Section 41 - 4-3 (F)(3) is applicable to any person that has \u201cbeen authorized to exercise and who [does] exercise state law enforcement powers\u201d regardless of whether he receives compensation. We disagree.\n{18} Section 41-4-3(F)(3) includes as \u201cpublic employees\u201d those persons \u201cacting on behalf or in service of a governmental entity in any official capacity, whether with or without compensation[.]\u201d In construing a statute, we seek to achieve the intent of the Legislature. Grine v. Peabody Natural Res., 2006-NMSC-031, \u00b6 17, 140 N.M. 30, 139 P.3d 190. \u201cThe first guiding principle in statutory construction dictates that we look to the wording of the statute and attempt to apply the plain meaning rule, recognizing that when a statute contains language which is clear and unambiguous, we must give effect to that language and refrain from further statutory interpretation.\u201d United Rentals Nw., Inc. v. Yearout Mech. Inc., 2010 NMSC-030, \u00b6 9, 148 N.M. 426, 237 P.3d 728 (alteration, internal quotation marks, and citation omitted). We do not read a statute in such a way that \u201cwould lead to injustice, absurdity, or contradiction.\u201d Otero v. State, 1987-NMCA-054, \u00b6 11, 105 N.M. 731, 737 P.2d 90.\n{19} Accepting Officer Gutierrez\u2019s interpretation of Section 41-4-3(F)(3) would require us to expand the definition of \u201cpublic employee\u201d to include law enforcement officers acting within the scope of their police duties but who are not salaried employees of a governmental entity subject to the TCA. See \u00a7 41-4-3(D). In essence, Officer Gutierrez is asking this Court to create two classes of law enforcement officers within the TCA\u2019s definitional section of \u201cpublic employee\u201d \u2014 one that is salaried and works for a governmental entity and one that is not. We decline to do so for several reasons. First, such an interpretation would go beyond the plain language of Section 41-4-3(F)(3). That section makes no mention of providing an alternate or different definition of \u201cpublic employee\u201d to include those persons exercising state law enforcement powers but who are not salaried employees of a \u201cgovernmental entity.\u201d See id. Second, reading the statute to say that a police officer who fails to meet the definition of a \u201claw enforcement officer\u201d under Section 41-4-3(D) can then allege that his same conduct falls within another definition in order to trigger the duty to defend and indemnify is an illogical distinction that makes no sense. See Ramirez v. IBP Prepared Foods, 2001-NMCA-036, \u00b6 16, 130 N.M. 559, 28 P.3d 1100 (stating that \u201c[i]n interpreting a statute, we look to the statute as a whole [and] . . . attempt to achieve internal consistency\u201d (citation omitted)), superseded by statute on other grounds as stated in Baca v. Los Lunas Cmty. Programs, 2011-NMCA-008, 149 N.M. 198, 246 P.3d 1070. In other words, Officer Gutierrez cannot claim that he was acting in his capacity as a law enforcement officer yet disclaim that he must fit within the TCA\u2019s definition for conduct involving a law enforcement officer. Finally, if the New Mexico Legislature had intended to protect commissioned tribal officers discharging their duties under state law, it could readily have demonstrated such an intent by including language to that effect. See Starko, Inc. v. Presbyterian Health Plan, Inc., 2012-NMCA-053, \u00b6 49, 276 P.3d 252 (noting that if the Legislature wanted to condition the applicability of a payment scheme on the dispensing of the lesser expensive, therapeutic equivalent drug, it would have included those terms within the statute), cert. granted, 2012-NMCERT-003, 293 P.3d 184. Indeed, our Legislature recently amended the TCA to include \u201ccertified part-time salaried police officer[s] employed by a governmental entity\u201d within the definition of \u201claw enforcement officer.\u201d Section 41-4-3(D). Thus, the Legislature could have \u2014 but did not \u2014 include non-salaried commissioned officers working on behalf or in the service of a governmental entity subject to the TCA.\n{20} Officer Gutierrez relies on several cases and statutes as sirpport for his contention that he fits within the definition of Section 41-4-3(F)(3). However, none of these cases or statutes have any bearing on the issue on appeal. For example, he cites to Celaya v. Hall, 2004-NMSC-005, 135 N.M. 115, 85 P.3d 239, for the proposition that he, like the volunteer chaplain in that case, is an uncompensated person working \u201con behalf of or in service of a governmental entity.\u201d However, the issue in Celaya was not whether the police department\u2019s volunteer chaplain came within the definition of \u201claw enforcement officer\u201d under Section 41-4-3(F)(3). Instead, that case dealt with whether the chaplain, who had been given a vehicle by the Bernalillo County Sheriffs Department to drive to and from official functions, could be acting within the scope of his duties if he was driving to or from an official function when he ran over a teenager\u2019s foot in a Wal-Mart parking lot. Celaya, 2004-NMSC-005, \u00b6 1-3. Furthermore, in Celaya, the tort for which immunity was waived by the TCA came under the exception of negligent operation of a motor vehicle. See \u00a7 41-4-5. In contrast, here, the only section of the TCA that waives immunity for the claims asserted against Officer Gutierrez' is the law enforcement provision of Section 41-4-12, and he identifies no other exception. Consequently, Celaya has no bearing on this case.\n{21} Officer Gutierrez also cites to 28 U.S.C. \u00a7 2680(h) (2006) of the Federal Tort Claims Act (FTCA) to support his argument that he is a \u201cpublic employee.\u201d We fail to see the relevance of the FTCA here when the statutory language defining a \u201cpublic employee\u201d under the various provisions of the TCA is clear and unambiguous. Further, the many federal cases cited by Officer Gutierrez are also not pertinent. The crux of those cases is not whether a tribal officer enforcing state law pursuant to a commission is a \u201claw enforcement officer\u201d entitled to a defense and/or indemnification under the TCA, but whether he may become a \u201cstate actor\u201d for purposes of 42 U.S.C. \u00a7 1983. See, e.g., Romero v. Peterson, No. CIV-89-128-JC, 1993 WL 375746, at *1-3 (10th Cir. Sept. 27,1993); Romero v. Peterson, 930 F.2d 1502, 1503-04 (10th Cir. 1991); Hebert v. United States, 438 F.3d 483, 486-87 (5th Cir. 2006); Ouart v. Fleming, No. CIV-08-1040-D, 2010 WL 1257827, at *3 (W.D. Okla. Mar. 26, 2010).\n{22} There is no dispute that once commissioned as a sheriffs deputy, Officer Gutierrez was authorized to discharge all the law enforcement powers of a Santa Fe County sheriff, including with respect to the Motor Vehicle Code. We conclude however, that in this case, such a commission did not make Officer Gutierrez a \u201cpublic employee\u201d of the County but merely conferred upon him jurisdiction to act lawfully when enforcing state and local laws. Accordingly, the County has no duty to defend Officer Gutierrez in this lawsuit or indemnify him for tortious acts committed under color of his commission. We affirm the district court\u2019s decision.\nCONCLUSION\n{23} We affirm the decision of the district court.\n{24} IT IS SO ORDERED.\nLINDA M. VANZI, Judge\nWE CONCUR:\nRODERICK T. KENNEDY, Chief Judge\nCYNTHIA A. FRY, Judge\nUnder a similar factual scenario, this Court has previously held that the TCA\u2019s definition of \u201cpublic employee\u201d under Section 41-4-3(F) and \u201cgovernmental entity\u201d under Section 41-4-3(B) did not include a cross-deputized Navajo police officer who was sued after issuing a Navajo speeding ticket to a non-Indian on a state right of way through the Navajo Nation. Williams v. Bd. of Cnty. Comm\u2019rs of San Juan Cnty., 1998-NMCA-090, \u00b6\u00b6 2, 26, 125 N.M. 445, 963 P.2d 522. Although Williams is arguably dispositive, it did not address any of the enumerated definitions raised by Officer Gutierrez on appeal. We therefore proceed to consider those arguments.", "type": "majority", "author": "VANZI, Judge." } ], "attorneys": [ "Ray A. Padilla, P.C. Ray A. Padilla Albuquerque, NM for Appellant", "Law Office of Michael Dickman Michael Dickman Santa Fe, NM for Appellee" ], "corrections": "", "head_matter": "Certiorari Granted, February 7, 2014,\nNo. 34,447\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2014-NMCA-028\nFiling Date: November 13, 2013\nDocket No. 32,405\nJOSE LUIS LOYA, Plaintiff, v. GLEN GUTIERREZ, Commissioned Officer of Santa Fe County, Defendant/Third-Party Plaintiff-Appellant, v. COUNTY OF SANTA FE, Third-Party Defendant-Appellee.\nRay A. Padilla, P.C. Ray A. Padilla Albuquerque, NM for Appellant\nLaw Office of Michael Dickman Michael Dickman Santa Fe, NM for Appellee" }, "file_name": "0510-01", "first_page_order": 526, "last_page_order": 534 }