July 16, 2019

Tenth Circuit: “Arguable” Reasonable Suspicion Enough to Support Qualified Immunity

The Tenth Circuit Court of Appeals issued its opinion in Shimomura v. Carlson on Tuesday, December 29, 2015.

Tsutomu Shimomura was at a security checkpoint at DIA when a TSA agent tested his medicine with a test strip. Mr. Shimomura expressed concern about the sterility of the test strips and asked to speak to a supervisor. The supervisor, TSA Agent Kendra Carlson, engaged in a heated exchange with Mr. Shimomura while Denver Police Officer Wade Davis watched. Agent Carlson eventually ordered Mr. Shimomura to “get the hell out of here,” and he turned to leave. As he was leaving, his roller bag may have struck Agent Carlson. Officer Davis immediately arrested Mr. Shimomura. He was detained for approximately 9o minutes, then was issued a summons and complaint, charging him with assault for pushing his roller bag into Agent Carlson. The prosecutor dismissed the criminal complaint after reviewing the charges.

Mr. Shimomura brought suit against Agent Carlson and Officer Davis, alleging 42 U.S.C. § 1983 violations of his Fourth, Fifth, and Fourteenth Amendment rights. The district court granted summary judgment based on qualified immunity to Officer Davis on the Fourth Amendment claims and dismissed the claims against Agent Carlson based on failure to state a claim. The court also dismissed the causes of action based on violations of the Fifth and Fourteenth Amendments for failure to state a claim. Mr. Shimomura appealed.

The Tenth Circuit first determined that Officer Davis was entitled to qualified immunity because he had at least a modicum of reasonable suspicion that Mr. Shimomura had committed a crime. The majority panel determined that probable cause was at least “arguable” as to Officer Davis. The Tenth Circuit evaluated the crime of which Mr. Shimomura was charged, third-degree assault, which requires reckless or intentional commission of assault, which is separately defined as bodily injury, including pain. The majority panel determined that Officer Davis had at least arguable suspicion that Agent Carlson experienced pain, however minor or fleeting, from her contact with the roller bag, and therefore he was entitled to qualified immunity. Chief Judge Tymkovich dissented; he opined that the majority panel disregarded its role by impermissibly finding facts instead of questioning whether a reasonable jury could have taken Mr. Shimomura’s version of the events as true. Judge Tymkovich did not believe Officer Davis was entitled to qualified immunity.

The Tenth Circuit next evaluated the district court’s dismissal of Mr. Shimomura’s claims against Agent Carlson. The Tenth Circuit affirmed the dismissal, finding that even if Agent Carlson fabricated her version of the events, she did so after Mr. Shimomura’s arrest. Because Mr. Shimomura was arrested as a matter of law in the moments after his roller bag may have struck Agent Carlson, any withholding and fabrication of evidence took place after that moment. The Tenth Circuit found Mr. Shimomura’s Fourth Amendment claims against Agent Carlson failed.

The Tenth Circuit then turned to Mr. Shimomura’s conspiracy claims and disregarded them for the same reason. The Tenth Circuit determined that, because any conspiracy would have occurred after Mr. Shimomura’s arrest, his claims could not stand. The Tenth Circuit similarly disposed of Mr. Shimomura’s due process claims, finding that any due process issues related to unlawful arrest must be decided under the Fourth Amendment.

The Tenth Circuit affirmed the district court. Chief Judge Tymkovich dissented as to the claims against Officer Davis.

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