August 18, 2017

Tenth Circuit: Defendant’s Appeal of Motion to Reconsider Untimely Where Not Appeal of Qualified Immunity Denial

The Tenth Circuit Court of Appeals issued its opinion in Powell v. Miller on March 7, 2017.

Powell was released from death row and sued the prosecutor responsible for his overturned conviction, Miller. Powell charged that Miller had suborned perjury from a key witness at his trial, Derrick Smith, and had hidden from the defense evidence of Miller’s agreement to help Smith with his own criminal charges. Miller filed a motion to dismiss. The district court granted the motion in part, but denied qualified immunity on certain claims. Miller did not appeal the ruling.

Three years later, Miller filed a motion to reconsider the denial of qualified immunity. The district court denied that motion because Miller did not present a substantive basis for the court to change its opinion. Miller appealed the denial of his motion to reconsider.

The Tenth Circuit held that a district court’s pretrial denial of a qualified immunity defense, to the extent it turns on an issue of law, is an appealable final decision. But here, the Tenth Circuit held that Miller did not appeal from the district court’s order denying his qualified immunity defense. Instead, Miller appealed from the district court’s order denying reconsideration of that ruling almost three years later. Therefore, the Tenth Circuit held that it lacked jurisdiction to consider the district court’s order denying Miller’s motion to reconsider. It held that Miller could not use his motion for reconsideration to resurrect his right to appeal the district court’s order denying him qualified immunity.

Therefore, the Tenth Circuit dismissed Miller’s appeal due to lack of jurisdiction.

Tenth Circuit: Unofficial Head of Small Town Police Department Did Not Have Final Policymaking Authority for Department

The Tenth Circuit Court of Appeals issued its opinion in Patel v. Hall on March 1, 2017.

On April 20, 1011, Officers Bubla and Hall arrived at Mr. Austin’s auto-repair business pursuant to a call from Ms. Austin regarding suspicious activity by their landlord, Plaintiff Chetan Patel. The officers were informed that several cars that Plaintiff brought in were missing their Vehicle Identification Number (VIN). Additionally, Mr. Austin told the officers that he suspected the VINs had been switched on certain vehicles.

The officers contacted the County Attorney’s Office after speaking with the Austins and were informed that the officers could permit the Austins to remove their belongings from the premises and seal the building pending a search warrant. The officers also photographed the trucks with missing or replaced VIN plates which Mr. Austin had pointed out to them. The officers sealed the building. The next morning, Mr. and Ms. Austin and their son submitted written statements to the police and swore to their truthfulness in front of a notary. The statements included instances where the Plaintiff told Mr. Austin he needed to remove Plaintiff’s vehicles off the premises “because they were starting to draw the state’s attention.”

Officer Hall was unable to immediately obtain a search warrant, as none of the judges in Big Horn County were available. Officer Hall contacted the County Attorney’s Office to inquire whether there was probable cause to arrest Plaintiff because Officer Hall believed Plaintiff might remove evidence from the premises. The County Attorney determined that there was probable cause to justify a warrantless arrest for felony VIN fraud. Plaintiff was arrested and the county court issued an arrest warrant the next day, along with a search warrant for the premises.

Pursuant to the search warrant, the officers discovered a syringe and white powder on a table in the premises. The officers left the building and obtained a new warrant to search for drugs as well as VIN plates inside the building. In total, the officers seized two loose VIN plates, a truck with switched VIN plates, a truck with a missing VIN plate, and an empty insurance envelope which was found laying on the floor with a claim number written on it. The officers also photographed several documents with VIN numbers written on them.

The charges against Plaintiff for felony VIN fraud were dismissed on October 4, 2011. In April 2014, Plaintiff filed the §1983 complaint. Defendants argued they were entitled to qualified immunity. Plaintiff supplied an affidavit purportedly signed by Mr. Austin. Plaintiff’s two attorneys also submitted affidavits stating they met with Plaintiff and Mr. Austin when Mr. Austin allegedly made statements that differed from his original sworn police witness statement.

The district court granted summary judgment for Defendants and refused to consider the purported Mr. Austin affidavit. The district court also disregarded Plaintiff’s attorneys’ affidavits holding that the affidavits would make the attorneys material witnesses to the case in violation of Rule 3.7 of the Wyoming Rules of Professional Conduct. The district court held that Plaintiff had not shown a constitutional violation relating to the search and seizure because (i) Mr. Austin consented to the initial search, (ii) the officers had probable cause to seize the shop while they obtained a search warrant, (iii) the subsequent search was conducted pursuant to a search warrant, and (iv) there was sufficient probable cause for Plaintiff’s arrest. The district court also rejected Plaintiff’s claim that the search was beyond the scope of the search warrant because Plaintiff had not shown the officer’s actions violated clearly established law. Finally, the district court dismissed Plaintiff’s state law claims with prejudice based on a procedural deficiency by Plaintiff and the state defense of qualified immunity.

The Tenth Circuit first addressed the district court’s grant of summary judgment in favor of Officer Hall on Plaintiff’s official-capacity claim. The claim requires evidence that the municipality “caused the harm through the execution of its own policy or customs or by those whose acts may fairly be said to represent official policy.” The police department at the time had no chief of police, and Officer Hall was the senior officer. The Tenth Circuit laid out the test to decide whether a government employee is a final policymaker whose actions can give rise to municipal liability. First, the employee must be constrained by policies not of his own making. Second, his decisions must be final. Finally, the policy decisions and actions must fall within the realm of the employee’s grant of authority.

The Tenth Circuit held that there was no evidence to indicate whether or not Officer Hall was meaningfully constrained by policies not of his own making, whether or not his decisions were final, or whether his actions fell within the realm of his grant of authority. Therefore, the Tenth Circuit held that Plaintiff failed to satisfy the municipal liability test. Simply because Hall was “in charge” before the new chief took office was not enough. The Tenth Circuit affirmed the district court’s grant of summary judgment on Plaintiff’s official-capacity claims.

The Tenth Circuit next addressed the claims against Defendants in their individual capacities. The Tenth Circuit held that because Defendants asserted qualified immunity, the burden shifted to Plaintiff to establish that the Defendants violated a constitutional right and that the right was clearly established at the time of the violation.

Plaintiff’s first claim was against Officers Hall and Bubla for violation of his Fourth Amendment right when they initially searched the shop without a warrant. The Tenth Circuit held that the search was conducted pursuant to consent. The Austins had actual or apparent authority to consent as both worked at the auto-repair business. Ms. Austin contacted police and both she and Mr. Austin were present when the officers were shown around the shop. Mr. Austin did not protest, and the Tenth Circuit held that this was non-verbal consent.

Next, Plaintiff argued that Officers Hall and Bubla violated his Fourth Amendment rights when they sealed the premises without a warrant or probable cause. The Tenth Circuit held that there was probable cause and therefore Plaintiff’s rights were not violated. Probable cause existed because of what the officers found during their initial search with the Austins, Plaintiff’s suspected criminal conduct, and what Mr. Austin had told the officers about his conversations with Plaintiff. Therefore, the Tenth Circuit held that the officers were justified in sealing the building.

Third, Plaintiff argued that Hall violated his Fourth Amendment rights by arresting him without a warrant. The Tenth Circuit held that the arrest was valid because Hall had probable cause to believe Plaintiff was fraudulently altering VIN Plates. The Tenth Circuit held that the factors justifying the warrantless seizure of the building also supported Plaintiff’s arrest.

Fourth, Plaintiff argues that the warrants to search his shop and for his arrest were defective because they were “procured with reckless insufficient information.” The Tenth Circuit stated that there only needs to be a “substantial probability” that the suspect committed the crime before making an arrest. The Tenth Circuit held that Plaintiff’s evidence did not dispute that there was a substantial probability. Further because the prior search was lawful due to consent, the Tenth Circuit held that there was probable cause for a warrant to search the shop based on the initial findings.

Fifth, Plaintiff argued that the officers exceeded the scope of the search warrant. The Tenth Circuit held that the first two ways alleged by Plaintiff were not supported by evidence. The third allegation was that the officers exceeded the scope by seizing an envelope found on the ground of the shop. The Tenth Circuit held that Plaintiff met his burden of showing that the officers were not entitled to qualified immunity on that issue. The warrant clearly specified what items were to be seized, and by seizing additional items, the officers acted unreasonably for Fourth Amendment purposes.

The Tenth Circuit next addressed the district court’s decision to disregard the affidavit purportedly signed by Mr. Austin and its holding that the attorneys’ affidavits were inadmissible based on Wyoming’s professional conduct lawyer-as-witness rule. The Tenth Circuit held that is did not need to consider whether the district courts holding was accurate because even if the information from Mr. Austin’s purported affidavit was considered, it would not have created a material dispute of fact to defeat the Defendant’s assertion of qualified immunity. Therefore, the Tenth Circuit held that any error by the district court regarding Mr. Austin’s affidavit was harmless.

Finally, the Tenth Circuit held that the district court erred in dismissing Plaintiff’s state law claims with prejudice. Because the district court did not explain why the defendants were entitled to the state qualified immunity, the Tenth Circuit remanded the issue for further consideration by the district court.

In sum, the Tenth Circuit reversed the grant of summary judgment as to the seizure of the envelope, remanded for further proceedings on the state qualified immunity issue, and affirmed the district courts grant of summary judgment in favor of all Defendants on the remaining claims.

Tenth Circuit: Officers Reasonably Believed Use of Deadly Force was Necessary

The Tenth Circuit Court of Appeals issued its opinion in Carabajal v. City of Cheyenne, Wyoming on February 6, 2017.

This case arose out of an instance involving the Plaintiffs, Mathew Carabajal and his son, V.M.C., being pulled over by several officers, including Officer Thornton and Officer Sutton. On September 19, 2011, Mr. Carabajal was driving a vehicle containing his infant son, V.M.C., and two others. A police vehicle with its lights and sirens activated followed him, but he continued to drive for approximately six blocks, obeying the speed limit. After Mr. Carabajal pulled over, Officer Thornton, one of two officers who later arrived at the scene, stood in front of the vehicle, while a police vehicle was positioned behind Mr. Carabajal’s vehicle and two other vehicles were parked in front of Mr. Carabajal’s. Officer Thornton shouted at Mr. Carabajal, “Don’t start the car or I’ll shoot.” Mr. Carabajal’s vehicle began to move forward and, after three seconds, Officer Thornton fired two rounds from his shotgun at Mr. Carabajal, injuring him. The car then stopped and Officers Thornton and Sutton removed Mr. Carabajal from the vehicle. Mr. Carabajal fell to the ground and Officers Sutton and Thornton slowly dragged Mr. Carabajal out of the vehicle.

Plaintiffs sued the City of Cheyenne, Wyoming, its police department, and four officers, including Officers Thornton and Sutton, in their individual capacities. The district court dismissed V.M.C.’s claim that he was unlawfully seized when Officer Thornton shot into the vehicle he was an occupant in. The district court granted summary judgment on Mr. Carabajal’s excessive force claims, finding that the officers were entitled to qualified immunity. The district court also held that the complaint did not plead a negligence claim against the City based on the alleged hiring of Officer Thornton, due to a lack of evidentiary support.

The Tenth Circuit first addressed Mr. Carabajal’s challenge of the district court’s grant of qualified immunity on his excessive force claims. In this case, the events were captured on video, and the Tenth Circuit states that it relied on that evidence. The Tenth Circuit articulated the two-part analysis required when a defendant asserts qualified immunity. First, the plaintiff must allege facts to demonstrate that a violation of a constitutional right occurred. Second, if that demonstration is made, the court must determine whether the right at issue was “clearly established” at the time of the incident. The plaintiff must show both of these factors.

Mr. Carabajal alleged that Officers Thornton and Sutton violated his Fourth Amendment rights through the use of excessive force.  The Fourth Amendment protects individuals against “unreasonable searches and seizures.” A “seizure” must have occurred and the plaintiff must prove that is was “unreasonable.” Mr. Carabajal made two claims of excessive force.

Mr. Carabajal’s first excessive force claim regarded Officer Thornton’s shooting of Mr. Carabajal. The district court held that the use of force in this case was reasonable. The Tenth Circuit agreed. The Tenth Circuit cited the facts that Mr. Carabajal had eluded police for several blocks, was ordered not to start the vehicle, and that Mr. Carabajal appeared to deliberately drive his vehicle in Officer Thornton’s direction. Additionally, because of the positions of the three police vehicles, in those close quarters, the Tenth Circuit held that a reasonable officer could conclude that his life was in danger and employ deadly force to stop the vehicle. It was reasonable for Officer Thornton to have perceived that Mr. Carabajal’s driving was deliberate. Therefore, Officer Thornton’s conduct was reasonable.

Next, the Tenth Circuit held that, even if Officer Thornton’s conduct was excessive under the Forth Amendment, it was not clearly established that his conduct was unlawful at the time of the shooting. The Tenth Circuit addresses a circuit split regarding the issue and a lack of Supreme Court precedent to hold that the unlawfulness of Officer Thornton’s conduct was not clearly established.

Therefore, the Tenth Circuit held that qualified immunity was warranted regarding Mr. Carabajal’s first excessive force claim.

Mr. Carabajal’s second excessive force claim regarded Officers Thornton and Sutton’s removal of Mr. Carabajal from the vehicle after he was shot. The Tenth Circuit held that the video evidence revealed that the officers did not use an unreasonable amount of force, nor was it unreasonable to remove Mr. Carabajal from the vehicle under those circumstances. When Mr. Carabajal was removed, the officers were aware that he had been non-compliant with police instructions at least twice. Accordingly, the Tenth Circuit held that Mr. Carabajal did not demonstrate a violation of a constitutional right and that Officers Thornton and Sutton were entitled to qualified immunity regarding Mr. Carabajal’s second excessive force claim.

The Tenth Circuit next addressed V.M.C.’s claim that he was unlawfully seized by Officer Thornton when he shot into the vehicle that V.M.C. occupied. The Tenth Circuit held that even if V.M.C. did plead a plausible unreasonable seizure claim, Officer Thornton would have been entitled to qualified immunity because the law does not clearly establish whether firing a weapon into a car constitutes a Fourth Amendment seizure.

Finally, the Tenth Circuit addressed the district court’s dismissal of the Plaintiffs’ negligent hiring claim against the City. A plaintiff must show that the City was reckless or negligent in its employment of improper persons in work that posed a risk of harm to others, for the City to be liable. Here, the City engaged in an extensive investigation into Officer Thornton that demonstrated he qualified under Wyoming standards for employment as a police officer. The Plaintiffs presented no evidence that the City was on notice that Officer Thornton was likely to use unnecessary or excessive force against a member of the public. Thus, the Tenth Circuit held that the City owed no legal duty to protect Plaintiffs as they alleged.

Colorado Supreme Court: Officer Entitled to Bring Interlocutory Appeal Regarding Whether Sovereign Immunity Applied

The Colorado Supreme Court issued its opinion in Martinez v. Estate of Bleck on Monday, September 12, 2016.

Colorado Governmental Immunity Act—Interlocutory Appeal—Sovereign Immunity—Willful and Wanton Conduct.

Bleck was injured when Officer Jeffrey Martinez’s firearm  discharged during an attempt to subdue Bleck. Bleck filed a state law battery claim against Martinez, and Martinez filed a motion to dismiss, claiming immunity under the Colorado Governmental Immunity Act (CGIA). The trial court found that Bleck had adequately pleaded willful and wanton conduct by Martinez and thus denied Martinez’s motion. Martinez then filed an interlocutory appeal with the Court of Appeals. The Court of Appeals held that it lacked jurisdiction to hear the appeal because Martinez was only entitled to qualified immunity, which is not appealable on an interlocutory basis, not sovereign immunity, which is. The Supreme Court reversed and concluded that whether a public employee’s conduct is willful and wanton under the CGIA implicates sovereign immunity. Thus, the plain language of the CGIA affords Martinez a right to an interlocutory appeal. The Court further held that the trial court erred in (1) not deciding the issue of whether Martinez’s conduct was willful and wanton, and (2) using a negligence standard to define willful and wanton. Accordingly, the Court remanded the case for further proceedings consistent with this opinion.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: State of Residence Cannot Support Reasonable Suspicion

The Tenth Circuit Court of Appeals issued its opinion in Vasquez v. Lewis on Tuesday, August 23, 2016.

Peter Vasquez was driving eastbound on I-70 through Kansas at 2 a.m., traveling from Colorado to Maryland. Officer Lewis and Officer Jimerson could not read Vasquez’s temporary tag through his car’s tinted windows so they initiated a traffic stop. Jimerson observed blankets and a pillow in the front passenger seat and back seat of the car as he approached, and assumed something was obscured by the blankets in the back seat. Vasquez responded that there was no one else in the car. Jimerson took Vasquez’s license and proof of insurance and returned to the patrol car, where he told Lewis that Vasquez appeared nervous. Jimerson sent Lewis to gauge Vasquez’s nervousness and “get a feel for him.” Upon his return, Lewis responded that Vasquez looked “scared to death.” Jimerson checked the insurance and discovered that Vasquez had insurance for two newer vehicles. Suspecting that Vasquez was transporting illegal drugs, Jimerson called for a drug sniffing dog.

Lewis returned to Vasquez’s vehicle and asked where he worked, why he wasn’t driving the newer car, and why he didn’t have more belongings in his vehicle if he was moving. Eventually, Lewis issued a warning and started to walk away, then walked back and asked Vasquez if he could ask a few more questions. Lewis asked Vasquez if there were any illegal drugs in the vehicle, which Vasquez denied. Lewis then asked to search the vehicle but Vasquez refused. After he refused, Lewis detained Vasquez and searched the vehicle, aided by the drug dog. The search revealed nothing illegal.

Vasquez brought suit against the officers under 42 U.S.C. § 1983, arguing they violated his Fourth Amendment rights by detaining him and searching his car without reasonable suspicion. The district court initially denied the officers’ motion to dismiss, but after discovery, it granted the officers’ motion for summary judgment based on qualified immunity, holding that Vasquez could not show the officers violated a clearly established right. Vasquez timely appealed.

The Tenth Circuit remarked that it has repeatedly admonished that once an officer establishes a temporary tag is valid, the officer should explain the reason for the initial stop and let the motorist continue on his or her way. The officers argue their extended seizure was justified by reasons other than the temporary tag. The Tenth Circuit considered only whether the search and dog sniff were valid based on Vasquez’s challenge.

The officers contended their suspicions were valid because Vasquez was driving alone late at night; he was driving from Colorado, a “drug source area”; he was driving on I-70, a “known drug corridor”; he did not have enough items in his car to support his assertion that he was moving; the items in the backseat were obscured from view; he had a blanket and pillow in his car; he was driving an older car despite owning a newer one; there were fresh fingerprints on his trunk; and he seemed nervous. The Tenth Circuit was troubled by the officers’ justification that because Vasquez was from Colorado it should establish reasonable suspicion. The Tenth Circuit strongly cautioned that

It is wholly improper to assume that an individual is more likely to be engaged in criminal conduct because of his state of residence, and thus any fact that would inculpate every resident of a state cannot support reasonable suspicion. Accordingly, it is time to abandon the pretense that state citizenship is a permissible basis upon which to justify the detention and search of out-of-state motorists, and time to stop the practice of detention of motorists for nothing more than an out-of-state license plate.

The Tenth Circuit continued that the continued use of state of residence as justification is impermissible.

The Tenth Circuit also found that nervousness could not be used as justification, and found that the officers’ reasoning was contradictory at points. The Tenth Circuit similarly disregarded the argument that because Vasquez was driving on I-70 there should be suspicion, noting it would be suspicious if he were driving from Colorado to Maryland and not using I-70. The Tenth Circuit concluded the officers violated Vasquez’s constitutional rights by searching his car.

Turning to whether the right to be free of unconstitutional searches was clearly established at the time of the incident, the Tenth Circuit found precedent to support that it was. In fact, the Tenth Circuit found that the same officer, Officer Jimerson, was the subject of a strikingly similar case in which the Tenth Circuit found no reasonable suspicion for the driver’s detention.

The Tenth Circuit reversed the district court’s summary judgment and remanded for further proceedings. Judge McHugh dissented; he would not have found a constitutional violation and would have distinguished the other case involving Officer Jimerson.

Tenth Circuit: Officer, School Officials Entitled to Qualified Immunity for Arresting “Class Clown” for Burping in Class

The Tenth Circuit Court of Appeals issued its opinion in A.M. v. Holmes on Monday, July 26, 2016.

In May 2011, F.M. was a student at Cleveland Middle School in Albuquerque when his teacher radioed a request for assistance over her school-issued radio because F.M. was burping loudly in class and disrupting the other students. Officer Acosta, an Albuquerque police officer who was assigned to the school, answered the teacher’s radioed call for help. When Officer Acosta approached the classroom, he saw F.M. sitting on the floor in the hallway while the teacher stood in the classroom doorway. The teacher informed Officer Acosta that F.M. had interrupted class by burping loudly, and even when she ejected him from the room, he continued to lean into the class and burp, making the other students laugh and stopping the teacher from continuing her planned lessons. Officer Acosta escorted F.M. to the office, where he arrested F.M. under N.M. Stat. Ann. § 30-20-13(D), which provides that interfering with the educational process is a petty misdemeanor offense. Officer Acosta informed the principal, Ms. LaBarge, of his intent to arrest F.M., and Ms. LaBarge attempted to contact F.M.’s mother and also prepared a slip for a one-day suspension of F.M. Officer Acosta then transported F.M. to a juvenile detention facility, where he was picked up by his mother. F.M. did not argue with Officer Acosta and was rated a -2 out of 10 on the detention center’s risk assessment. F.M. did not return to Cleveland Middle School for the rest of the year. A.M. spoke publicly about F.M.’s arrest, and there was a good deal of publicity about the incident.

The following year, A.M., F.M.’s mother, re-enrolled him at Cleveland. On November 8, 2011, a student approached a teacher to report witnessing a drug transaction. Officer Acosta retrieved the school’s surveillance videos and, with Ms. LaBarge and an assistance principal, identified the five students involved in the transaction. F.M. was identified as one of the students. All of the students were searched individually in a conference room next to Ms. LaBarge’s office with several adults presents. All of the searches except F.M.’s were audio recorded.

None of the students had drugs on them, but F.M. had $200 cash. He relayed to the adults present that the cash was a birthday present. The assistant principal asked F.M. if he had anything he was not supposed to have, and he said he had a belt buckle in his bag with a marijuana leaf imprint. A search of his backpack revealed the belt buckle and a red bandanna, among other things. F.M. was wearing several layers of clothing, which he removed at the request of the school officials. A male teacher flipped down the waistband of F.M.’s athletic shorts, which revealed a pair of boxers underneath. The teacher did not touch F.M.’s boxers. During the search, A.M. contacted the school and was informed of the events of the morning. A.M. confirmed that F.M. had left the house carrying $200 in cash that morning. F.M. received a three-day suspension for the bandanna and belt buckle because they violated the school’s policies against “gang-related” clothing and “inappropriate messages or symbols.” Later that day, A.M. met with Ms. LaBarge, but according to Ms. LaBarge, A.M. “stormed out” of the office and said her attorney would contact the school.

A.M. sued Officer Acosta, Ms. LaBarge, and the assistant principal in state court, alleging Fourth Amendment violations relating to the May 2011 and November 2011 incidents. A.M. objected to F.M.’s handcuffing in May 2011, opining that a reasonable officer should have known that burping was not a crime and no force was necessary to effectuate an arrest of the compliant child. A.M. also alleged that Ms. LaBarge’s strip search of F.M. in November 2011 was unreasonable. Defendants removed the action to federal court and moved for summary judgment, asserting qualified immunity. The district court granted summary judgment to Ms. LaBarge, agreeing that she was entitled to qualified immunity. While the claims were still pending, A.M. filed another state court lawsuit against the assistant principal, alleging Fourth and First Amendment violations related to the strip search and retaliation for A.M.’s speaking to the media. The assistant principal removed the action to district court and argued collateral estoppel. The court granted summary judgment to the assistant principal. The district court also granted summary judgment to Officer Acosta, finding qualified immunity applicable. A.M. appealed.

The Tenth Circuit addressed A.M.’s claims regarding Officer Acosta first. A.M. contended that the district court sua sponte granted qualified immunity to Officer Acosta, but the Tenth Circuit noted that A.M. devoted most of her reply brief to the issue of qualified immunity and therefore was on notice that the defense had been raised. A.M. also contended she was deprived of the opportunity to present evidence of injuries F.M. suffered by being handcuffed, but the Circuit noted that in Officer Acosta’s response brief, he noted that any injury suffered would have been de minimus, therefore affording A.M. a chance to respond.

The Tenth Circuit next addressed the district court’s grant of qualified immunity to Officer Acosta on the claim that he arrested F.M. without probable cause in violation of the Fourth Amendment. The Tenth Circuit evaluated the New Mexico statute in question and found that Officer Acosta had arguable probable cause to arrest F.M. under the statute banning interference with the educational process. A.M. argued that burping in class did not rise to the level of seriousness contemplated by the statute, and F.M. was at worst being a class clown, conduct that “would have subjected generations of school boys to an after-school detention, writing lines, or a call to his parents.” The Tenth Circuit rejected A.M.’s contentions and determined that the broad language of the statute seemed to encompass F.M.’s conduct. The Tenth Circuit found that A.M. could not carry her burden regarding clearly established law, since the statute appeared to condemn F.M.’s conduct. The Tenth Circuit found that Officer Acosta possessed reasonable probable cause when he arrested F.M. Likewise, the Tenth Circuit agreed with the district court’s reasoning that A.M. had not shown that Officer Acosta committed a constitutional violation when he arrested F.M. The district court determined that A.M. failed to present evidence of an actual physical or psychological injury.

The Tenth Circuit next turned to A.M.’s claims against the assistant principal. The district court found that the assistant principal was entitled to qualified immunity on A.M.’s First, Fourth, and Fourteenth Amendment claims, and the Tenth Circuit agreed. Because the November 2011 search of F.M. was arguably justified at its inception, the assistant principal did not violate the Fourth Amendment by beginning the search of F.M. Likewise, because the search continued to be reasonable in its scope, it was within the strictures of the Fourth Amendment. The Tenth Circuit also dismissed A.M.’s claim that the assistant principal executed the search in retaliation for A.M.’s protected First Amendment activity, referring to its first finding that the search was reasonable at its inception and throughout its duration. A.M. also alleged a Fourteenth Amendment Equal Protection violation because the assistant principal searched F.M. more extensively than the other four students. The Tenth Circuit found that A.M. failed to set forth a legally cognizable Fourteenth Amendment claim because F.M. was not similarly situated to the other students.

Finally, A.M. argued the district court committed reversible error by granting qualified immunity to Ms. LaBarge on A.M.’s unreasonable search claim. A.M. incorporated her arguments against the assistant principal into the brief on Ms. LaBarge’s claim, and the Tenth Circuit decided to follow its previous reasoning in rejecting A.M.’s position.

The Tenth Circuit upheld the grants of qualified immunity as to all three defendants. Judge Gorsuch wrote a compelling dissent; he would have followed a previous New Mexico opinion that limited the statute in question to behavior much more serious than burping in class.

Tenth Circuit: Qualified Immunity Appropriate Where Officers Arrested Entire Group Based on Conduct of Unidentifiable Members

The Tenth Circuit Court of Appeals issued its opinion in Callahan v. Unified Government of Wyandotte County/Kansas City, Kansas on Monday, November 16, 2015.

In 2010, the Kansas City Police Department (KCKPD) received three allegations of theft when its specialized SCORE unit was involved in executing search warrants. As a result, the KCKPD and the FBI set up a sting operation, “Operation Sticky Fingers,” to determine the integrity of the SCORE unit. Operation Sticky Fingers involved the execution of a fictitious search warrant at a residence monitored via live video and audio. Bait items had been placed in a bedroom and the basement. During the execution of the search warrant, KCKPD Detective Jon Kelley observed several instances of actual theft but could not tell which officer was involved because of the protective gear worn by SCORE officers. Detective Kelley relayed his observations of the theft to Captain Lawson at another location, who then contacted Captain Nicholson at the residence. Because of the delay in relaying the information from Detective Kelley to Captain Nicholson, it was possible for the officers to have moved around the house before being identified.

After the sting, the SCORE officers returned to the parking garage at KCKPD headquarters and KCKPD commanders arrested all of the SCORE officers as they exited the van. It was later discovered that only Officers Forrest, Bell, and Sillings were involved in the theft. The other three officers, Officers Callahan, Pitman, and Hammons, brought claims under 42 U.S.C. § 1983 against the Unified Government of Wyandotte County/Kansas City and various individual defendants, asserting violations of their Fourth Amendment rights for arrests without probable cause. The plaintiffs also moved for partial summary judgment on the issue. The district court denied summary judgment, finding that the record supported a finding that probable cause existed to arrest the entire SCORE unit. The individual defendants then moved for summary judgment based on qualified immunity, which the district court denied without making specific findings on the issue. Defendants moved for reconsideration in one of the cases, requesting a more thorough explanation of the disputed material facts on which the district court relied, and simultaneously filed a notice of appeal. The district court denied the motion for reconsideration and later denied summary judgment in the other two cases. The Tenth Circuit consolidated the three plaintiff officers’ motions for purposes of appeal.

The Tenth Circuit evaluated whether qualified immunity was appropriate based on a clearly established right. The Tenth Circuit first questioned whether the law was clearly established such that defendants would know their actions were illegal, and determined that it was not. The Tenth Circuit noted that plaintiffs and the district court broadly asserted that making an arrest without probable cause was illegal without pointing to the specific inquiry of whether the law was clearly established that an officer cannot arrest an entire group when he knows that some unidentifiable members have committed a crime. The Tenth Circuit determined that Maryland v. Pringle, 540 U.S. 366 (2003), provided the appropriate precedent under which to evaluate the officers’ actions in the instant case. The Tenth Circuit found that Pringle‘s application to this case was debatable, and concluded that qualified immunity applied. The Tenth Circuit remarked that qualified immunity exists to prevent officers from being held liable for making an incorrect legal determination on the spot without guidance from the courts.

The Tenth Circuit declined to exercise pendant jurisdiction to address the Unified Government’s appeal, because it was not entitled to qualified immunity and the denial of summary judgment to the government was not immediately appealable.

The Tenth Circuit reversed the district court’s denial of qualified immunity to the individual defendants and dismissed the Unified Government’s appeal.

Colorado Supreme Court: Late Filing Not Allowed Under Excusable Neglect Because Claim Not Meritorious

The Colorado Supreme Court issued its opinion in Sebastian v. Douglas County on Monday, February 29, 2016.

Hearing and Determination—Pleading—Civil Procedure.

In his action under 42 USC § 1983, plaintiff alleged that his Fourth Amendment rights were violated when he was bitten by a K-9 police dog. His claim was dismissed after he failed to respond to a motion to dismiss. Thereafter, he filed a motion to set aside the judgment under CRCP 60(b)(1), asserting that his failure to respond was caused by excusable neglect. The trial court denied the Rule 60(b)(1) motion, and the court of appeals affirmed, concluding that plaintiff failed to demonstrate that he had alleged a meritorious claim or defense, the second factor to be considered under Rule 60(b)(1). The court of appeals reasoned that plaintiff failed to allege an intentional seizure by the government as required under Brower v. County of Inyo, 489 U.S. 593, 596 (1989). More specifically, the court of appeals reasoned that an intentional seizure occurs when an officer releases a K-9 into a particular “space” and the plaintiff is bitten within that space.

The Supreme Court affirmed, but on narrower grounds. The Court rejected the court’s “space” analysis and instead found that the allegation regarding an intentional seizure in plaintiff’s complaint amounts to a legal conclusion, which is insufficient to allege a meritorious claim under Rule 60(b)(1).

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Officer Lacked Reasonable Basis to Effect Felony Stop Based on Mistaken Information

The Tenth Circuit Court of Appeals issued its opinion in Maresca v. Bernalillo County on Thursday, October 22, 2015.

Stephen Maresca, a former police officer, and his family were returning from a family hike when they were pulled over by Bernalillo County Sheriff’s Deputies J. Fuentes, G. Grundhoffer, and four other officers. Officer Fuentes, who had completed her training as a new officer approximately two months earlier, initiated the stop. Mr. Maresca waved to Officers Fuentes and Grundhoffer as he drove by, and Officer Fuentes randomly decided to follow the Marescas’ truck—a red 2004 Ford F-150 pickup. She attempted to type their license plate number into her onboard computer, but got a digit wrong and received a message that the vehicle, a maroon 2009 Chevrolet four-door sedan, had been stolen.

Without double-checking the license plate number or verifying that the information on her screen matched the Marescas’ vehicle, she initiated a “felony stop.” She called the Marescas actual license plate number into dispatch, stating that the vehicle was stolen, but did not wait for dispatch to verify the information before initiating the felony stop. As a result of this call, other officers were dispatched to assist. For the felony stop, she and Officer Grundhoffer, who was following her in a different vehicle, stood behind the open doors of their vehicles with weapons drawn and shouted orders at the Marescas. She ordered Mr. Maresca to turn off the truck, throw his keys out of the window, exit the truck with his hands in the air, lift his shirt above his waistband so she could check for weapons, and lay on the highway on his stomach. She repeated this procedure with Mrs. Maresca. The Marescas complied fully with Officer Fuentes’ commands. While they were laying on the ground, Mrs. Maresca informed the officers that there were children and a dog in the truck. Mr. Maresca also told them that there had to be a mistake and to check everything again. The officers ignored the Marescas.

The officers ordered the boys out of the car the same way as Mr. and Mrs. Maresca, and ordered 9-year-old M.M. to exit the vehicle and lift her shirt. The evidence is disputed whether they forced her to lay on her stomach or sternly told her to stay at the side. After all the Marescas were out of the truck, the dog became upset and jumped out of the vehicle, running into the highway. Mr. Maresca called the dog and the officers allowed him to hold onto her. Two more deputies arrived and one began directing traffic around the “felony stop.” Two additional deputies arrived next, and the Marescas presented disputed evidence that one of them pointed his gun directly at 14-year-old C.M.’s head, leading C.M. to freak out and start crying to his mom that they were going to kill him. There was also disputed evidence that an officer stood over Mrs. Maresca with his gun cocked in a sideways gangster-style hold. Mrs. Maresca began to panic, and the children and Mrs. Maresca were all crying.

Finally, between seven and fifteen minutes after initiating the stop, Officer Fuentes returned to her vehicle and re-ran the Marescas’ plate, at which point she discovered her error. Fuentes asked one of the other deputies whether she was going to get into trouble. The deputy told her to uncuff the Marescas, let them return to their vehicle, and call a sergeant. Sergeant Bartholf explained to the Marescas that Fuentes was a new officer. The parties dispute whether he ever apologized. Mrs. Maresca asked Officer Quintana why he thought it necessary to point his gun at her when she was already laying on the ground, at which point Quintana smiled and walked away.

The Marescas filed suit in New Mexico state court, alleging the officers violated their 42 U.S.C. § 1983 rights to be free from unlawful arrest and excessive force. The Marescas also asserted state law claims against the officers for assault, false imprisonment, battery, and negligence, and asserted claims against Bernalillo County for negligent training. Defendants removed the case to the U.S. District Court for the District of New Mexico. The Marescas filed a motion for summary judgment on their federal claims, and the defendants moved for summary judgment on all claims. The district court denied the Marescas’ motion, granted defendants’ motion, and dismissed the Marescas’ state law claims without prejudice. The Marescas appealed.

The Tenth Circuit analyzed qualified immunity and found it inapplicable to Officer Fuentes. The Marescas argued Officer Fuentes violated their Fourth Amendment rights by arresting them without probable cause and by using excessive force. The officers argued that they did not arrest the Marescas, but the Tenth Circuit disagreed, finding the duration of the stop, the use of firearms, and rough treatment to which they subjected the Marescas indicated that the stop was an arrest. The Tenth Circuit further concluded the arrest was not supported by probable cause because the officers lacked an objectively reasonable basis to believe the truck was stolen. The Tenth Circuit noted that the sole basis for the arrest was Officer Fuentes’ “mistaken and unreasonable belief” that the truck was stolen. The Tenth Circuit clarified that it was not holding that a mere typing error deprives officers of a reasonable basis to effect an arrest, but rather based the holding in this case on all the facts taken together. However, in this case, the undisputed facts established that Fuentes violated the Marescas’ Fourth Amendment rights. The Tenth Circuit held that Officer Fuentes was not entitled to qualified immunity, and in fact that the Marescas were entitled to summary judgment against Officer Fuentes.

Turning to Officer Grundhoffer’s role, the Tenth Circuit concluded it was reasonable for him to rely on the information he was given by Officer Fuentes in assisting with the felony stop. The Tenth Circuit found no evidence that Officer Grundhoffer’s conduct was in bad faith or unreasonable under the circumstances. It therefore upheld qualified immunity as to Officer Grundhoffer.

Turning to the excessive force claim, the Tenth Circuit concluded that the Marescas were entitled to have their claims evaluated by a jury. The Tenth Circuit reiterated that although it granted summary judgment to the Marescas on their Fourth Amendment claims against Officer Fuentes, there were still questions of fact regarding whether the officers used force that was unreasonable under the circumstances. The Tenth Circuit reminded the officers that the use of force must be justified under the circumstances, especially when directed at children as it was here. The Tenth Circuit also found that the Marescas presented evidence of more than de minimus injury.

The Tenth Circuit reversed the district court’s grant of summary judgment to Officer Fuentes based on qualified immunity, and also reversed the court’s denial of summary judgment to the Marescas as related to Officer Fuentes. It remanded for further proceedings consistent with its opinion. The Tenth Circuit affirmed the grant of summary judgment as to Officer Grundhoffer’s qualified immunity. On the excessive force claims, the Tenth Circuit affirmed the denial of summary judgment to the Marescas and remanded for further proceedings.

Tenth Circuit: Denial of Qualified Immunity Appropriate Where Victim Not Threatening Officers

The Tenth Circuit Court of Appeals issued its opinion in Tenorio v. Pitzer on Tuesday, October 6, 2015.

Hilda Valdez called 911 to report that her sister-in-law’s husband, Russell Tenorio, had a knife to his throat and was intoxicated. Officers Moore, Hernandez, and Liccione of the Albuquerque Police Department were dispatched to the call, and Officer Pitzer also responded. The 911 operator relayed to the officers that Tenorio had a knife to his own throat but no one was injured, he had broken some windows, he had been violent in the past (this was incorrect but was relayed to the officers), was waving the knife around, takes medication for seizures, and several other people were around. When the officers arrived, they met Ms. Valdez on the front lawn. Ms. Valdez was panicked and frightened. The officers entered the house without announcing themselves. Officer Pitzer was in front with his handgun drawn, and announced that he was “going lethal.” Officer Moore was behind Pitzer with his Taser, Officer Liccione was third and also had his gun drawn, and Officer Hernandez had a shotgun with bean bags but stayed behind to talk to Ms. Valdez.

When the officers entered the house, they asked Mrs. Tenorio to step out of the way and hustled her outside. On her way out, she said, “Russell, put that down.” She was followed by Tenorio, who had a blank stare and was holding a kitchen knife loosely by his side. Officer Pitzer shouted at Tenorio to drop the weapon, and two or three seconds later Pitzer shot Tenorio, Moore tased him, and he fell to the ground. Tenorio was hospitalized for months for the life-threatening injuries he suffered that night, and later brought 42 U.S.C. § 1983 excessive force claims against Pitzer, other officers, and the City of Albuquerque. Pitzer moved for summary judgment based on qualified immunity, but the district court denied his motion, concluding the evidence could show Pitzer violated clearly established law under two theories: (1) Pitzer lacked probable cause to believe that Tenorio presented a serious risk of harm to himself or others when he shot Tenorio, and (2) Pitzer and his fellow officers recklessly created the situation that resulted in use of deadly force. Pitzer appealed the denial of his summary judgment motion.

The Tenth Circuit found interlocutory jurisdiction by accepting the facts as agreed to by the parties and using the court’s construction of the evidence in the light most favorable to Tenorio. The Tenth Circuit evaluated Pitzer’s claim for qualified immunity based on a standard of objective reasonableness as judged from the perspective of a reasonable officer on the scene. The district court weighed four factors in denying Pitzer’s motion, including (1) whether the officers ordered the victim to drop his weapon, (2) whether the victim made hostile motions with the weapon toward the officers, (3) the distance between the officers and the victim, and (4) the manifest intentions of the victim. The court concluded the first factor was neutral because although the officers ordered Tenorio to drop his knife, they did not give him sufficient time to comply, the second factor weighed against probable cause because Tenorio was holding a small knife loosely by his thigh, the third factor weighed against probable cause because Tenorio was not within striking distance when he was shot, and the fourth factor weighed against probable cause because the only person Tenorio was said to have threatened was himself. The Tenth Circuit accepted the district court’s findings concerning the evidence and agreed that it sufficed to bar summary judgment against Tenorio’s claims.

The Tenth Circuit evaluated circuit precedent and determined that its prior holdings on probable cause supported the district court’s denial. Because Tenorio was not charging the officers, was not holding the weapon in a threatening gesture, was not speaking or moving aggressively, and was not within striking distance of the officers, it was unreasonable under circuit precedent for Officer Pitzer to use lethal force.

The Tenth Circuit affirmed the district court’s denial of qualified immunity, noting that a contrary judgment may be permissible after a jury trial. Judge Phillips wrote a scathing dissent. He would have granted qualified immunity based on the fact that Tenorio had a weapon and was in the same small room as the officers.

Tenth Circuit: Plaintiff Bears Burden to Prove Constitutional Violation of Clearly Extant Law in Qualified Immunity Case

The Tenth Circuit Court of Appeals issued its opinion in Cox v. Glanz on Tuesday, September 8, 2015.

Charles Jernegan surrendered at the David L. Moss Criminal Justice Center in Tulsa, Oklahoma in July 2009, and was asked several questions related to his physical and mental health as part of the intake process by the booking officer and nurse Faye Taylor. He reported that he was taking medication for paranoid schizophrenia but did not express any suicidal ideation. The next day, he filed a medical request through the jail’s kiosk system, reporting he needed to “speak to someone about problems.” Two days later, healthcare employee Sara Sampson attempted to check on him but because he had been moved to a different cell block she never contacted him. That same morning, Jernegan hanged himself and was found dead in his cell.

His mother, Carolyn Cox, brought a 42 U.S.C. § 1983 action against the Tulsa County Sheriff, Stanley Glanz, in his individual and official capacities, and also against the company that provided healthcare services to the jail and several of the jail’s healthcare employees, including Sampson and Taylor. As relevant to Sheriff Glanz, Ms. Cox alleged that his failure to provide adequate and timely mental health screening and care constituted deliberate indifference to Jernegan’s serious medical needs in violation of the Eighth Amendment. For the individual capacity claim, Ms. Cox relied on a supervisory-liability theory, alleging Glanz failed to properly train and supervise jail employees, including Sampson and Taylor. For the official capacity claim, Ms. Cox averred that Glanz had promulgated and administered an unconstitutional policy of providing insufficient mental health evaluation and treatment.

The sheriff moved for summary judgment, contending he was entitled to qualified immunity on the individual capacity claim because Ms. Cox had not established that any jail employee acted with deliberate indifference to Jernegan’s medical needs, he had not acted with the requisite state of mind to support a deliberate indifference claim, and he had not created any policy that produced constitutional harm. The district court denied Glanz’s motion, ruling that genuine issues of material fact precluded summary judgment. The district court did not explicitly focus on the framework of qualified immunity in its ruling. Glanz filed an interlocutory appeal.

The Tenth Circuit first addressed whether it had jurisdiction to entertain the sheriff’s interlocutory appeal, acknowledging that Ms. Cox’s jurisdictional arguments had merit because the district court did not follow the settled mode of decision-making regarding qualified immunity. Because the sheriff accepted Ms. Cox’s version of the facts as true, the Circuit had jurisdiction to evaluate the legal issues presented by the agreed-upon facts. The Tenth Circuit noted that the appropriate two-fold test for qualified immunity was whether there was a constitutional violation and whether that constitutional violation was grounded in clearly established law. The Tenth Circuit commented that neither party adequately briefed the question of whether the law was clearly established at the time of Jernegan’s suicide.

Turning to the merits of the appeal, the sheriff argued the district court committed reversible error when it denied him qualified immunity on his individual capacity claim and when it denied him summary judgment on his official capacity claim. The Tenth Circuit declined to reach the second argument, noting it lacked jurisdiction and declined to exercise pendent appellate jurisdiction. The Tenth Circuit dismissed the sheriff’s appeal on the official capacity claim.

As to the individual capacity claim, the Tenth Circuit elected to review whether clearly established law prohibited the constitutional violation suffered by Jernegan, i.e., whether an inmate’s right to proper suicide screening was clearly established in 2009. The Tenth Circuit noted that Ms. Cox failed to produce any case law support for her proposition, but conducted an independent review. The Tenth Circuit noted that its standard for the requisite state of mind for deliberate indifference was established in the mid-1990s and had not changed by 2009. The trend in the circuit was to require inmate-specific knowledge of suicide risk, and the circuit declined to hold jail officials responsible when the inmate did not demonstrate a particularized risk of suicide. Because Jernegan did not present a specific risk of suicide, no jail employee could have been found to have acted with deliberate indifference, so the sheriff could not be found to have acted with deliberate indifference under a supervisor liability theory. The Tenth Circuit held that Ms. Cox failed to satisfy the clearly-extant law prong of the qualified immunity analysis, and therefore the sheriff was entitled to qualified immunity on the individual capacity claim.

The Tenth Circuit reversed the district court’s denial of qualified immunity on the individual capacity claim against the sheriff and remanded with instructions to enter judgment in favor of the sheriff, and dismissed the part of the appeal related to the official capacity claim.

Tenth Circuit: Hot Pursuit Applies Only to Immediate, Ongoing Crimes

The Tenth Circuit Court of Appeals issued its opinion in Attocknie v. Smith on Monday, August 24, 2015.

Aaron Palmer was shot dead in his house in Oklahoma on August 25, 2012 by Deputy Sheriff Kenneth Cherry, who was attempting to enforce a warrant against Aaron’s father, Randall Palmer, for failure to appear in drug court. Aaron’s widow, Nicole Attocknie, brought § 1983 claims against Cherry and his supervisor, Sheriff Shannon Smith, on behalf of herself, Aaron’s estate, and their minor child. The suit claimed that Cherry violated Aaron’s Fourth Amendment rights by unlawfully entering the house and using excessive force and that Smith was liable for failure to train and supervise Cherry. Both Cherry and Smith raised qualified immunity defenses, but the district court denied their summary judgment motions. Both appealed.

Cherry argued on appeal that he is entitled to qualified immunity because his entry into Aaron’s house was justified by hot pursuit of Randall, who he thought he had seen at the residence. The Tenth Circuit disagreed, finding that hot pursuit was inapplicable to the facts of the case because Randall’s outstanding warrant was over a year old, Cherry was the only person who thought he saw Randall, Randall was not at the residence, and Cherry shot Aaron about two seconds after entering the residence. The Tenth Circuit noted that Cherry’s belief that he saw Randall was not reasonable, and that “hot pursuit” does not apply to crimes that are not immediately ongoing. The Tenth Circuit held that Cherry’s entry into Aaron’s residence was clearly contrary to well-established law, and he therefore is not entitled to qualified immunity.

Smith also appealed the district court’s denial of qualified immunity, arguing that Cherry’s entry into Aaron’s home did not violate the Constitution and even if it did Smith had no duty to supervise or train Cherry because he was not an employee. The district court found that Cherry was Smith’s employee, and, because Smith raised no argument that he would be entitled to qualified immunity even if Cherry were his employee, the Tenth Circuit affirmed the district court’s denial of qualified immunity.

The district court’s denials of qualified immunity to Smith and Cherry were affirmed.