F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 8 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
JEAN A. LUCERO, in her capacity as
guardian for Fred Hildebrandt, next
friend of Fred Hildebrandt,
No. 02-2280
Plaintiff - Appellee,
v. D. New Mexico
CITY OF ALBUQUERQUE; R. (D.C. No. CIV-01-1243-ELM/LFG)
JOHNSON, Officer; G. WOOD,
Officer,
Defendants- Appellants,
and
ARCA, a New Mexico corporation,
Defendant.
ORDER AND JUDGMENT *
Before KELLY , ANDERSON , and O’BRIEN , Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Albuquerque police officers R. Johnson and G. Wood appeal the denial of
their motion for summary judgment asserting qualified immunity from suit in this
42 U.S.C. § 1983 action alleging a violation of the Fourth Amendment rights of
Fred Hildebrandt. We have jurisdiction over this interlocutory appeal, see 28
U.S.C. § 1291, and Mitchell v. Forsyth , 472 U.S. 511, 525 (1985), limited to
purely legal issues. See Johnson v. Jones , 515 U.S. 304, 314 (1995). For the
reasons stated below, we reverse the judgment of the district court, and remand
with instructions to grant the motion for summary judgment.
BACKGROUND
The material facts alleged or undisputed 1
by the plaintiff, or with respect to
which no genuine issue has been created, are as follows. The plaintiff, Jean A.
Lucero, is the legal guardian of her brother Fred Hildebrandt, who is in his early
forties. Mr. Hildebrandt is mentally retarded, has suffered a traumatic brain
injury, and has significant behavioral deficits. Those conditions have made him
1
D. N. Mex. R. 56.1.
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prone to violent outbursts and attacks on caregivers. The danger and effect of
such outbursts is aggravated by the fact that Mr. Hildebrandt is a large man, over
six feet tall and weighing more than 200 pounds.
Due to his mental incapacity, Mr. Hildebrandt is housed in a state-funded
(including federal allotments) residential mental health care facility. He is
attended to by a staff of trained professionals employed by ARCA, a private entity
under contract with the State of New Mexico to perform such services.
On July 16, 2001, Mr. Hildebrandt had an episode of violence at the
residential facility. The magnitude of the event caused staff members to call 911
seeking police assistance in controlling Mr. Hildebrandt.
Officer Carrie Peterson, who was in the vicinity, responded first. Upon her
arrival, Officer Peterson observed two male ARCA staff members holding
Mr. Hildebrandt down. Peterson Aff., Appellant’s App. at 44. The staff members
complained of being tired from restraining Mr. Hildebrandt for some time,
informed Peterson that they feared injury if they released him, and requested
Peterson to apply handcuff restraints. Id. Based upon that request, Officer
Peterson’s own observations, and the information she was provided regarding Mr.
Hildebrandt’s history of having a violent disposition, she applied standard issue
handcuffs to restrain Hildebrandt from doing injury to himself or others. Id. at
44-45.
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Shortly thereafter, the defendants/appellants, Officers Wood and Johnson,
arrived and were briefed on the situation by ARCA staff and Peterson. Officer
Wood took charge because he was Critical Incident Team (C.I.T.) trained. Id. at
45. The three officers were advised by ARCA staff that a doctor was en route
with papers authorizing Mr. Hildebrandt’s prompt admission to the State’s Las
Vegas Medical Center in Las Vegas, New Mexico, and that ARCA staff would
take him to that facility. Incident Report 2
by Johnson, id. at 66; Peterson Aff., id.
at 45; Lucero Aff., id. at 72. Officer Peterson had the impression that the
transport would occur within the hour. Id.
Officers Wood and Johnson subsequently removed Peterson’s standard
issue handcuffs and applied plastic flex-cuffs to Mr. Hildebrandt’s wrists and
ankles. Id.
2
As part of the plaintiff’s response to the officers’ motion for summary
judgment, the plaintiff submitted to the district court the incident reports filled
out by Officers Wood and Johnson. In her memorandum brief to the district
court, the plaintiff stated that her submission of those reports was “not for the
purpose of asserting facts,” but for the purpose of identifying “alleged factual
discrepancies.” Mem. at 2, Appellant’s App. at 52. However, in the district court
the plaintiff relied on facts set out in those reports and continues to do so in her
brief on appeal. See, e.g., Appellee’s Br. at 3-4, 13. The district court also
referred to facts contained in those reports. Accordingly, we likewise refer to the
officers’ incident reports, to the extent that facts set forth therein do not conflict
with the plaintiff’s affidavit which she submitted in the district court. Lucero
Aff., Appellant’s App. at 70.
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After waiting for the doctor for about forty-five minutes, Officers Wood
and Johnson were advised it would be another forty-five minutes before the
doctor could get there. Incident Report of R. Johnson, Appellant’s App. at 66. At
that point, Officers Wood and Johnson determined that they could not wait any
longer and told staff members that they had to leave. According to the officers’
incident reports, ARCA staff advised them that Mr. Hildebrandt’s history of
explosive behavior included re-escalation, and they requested that for safety
reasons the temporary plastic restraints be left in place because the van in which
Hildebrandt was to be transported was uncaged. Id. at 65-67.
Based on the information given them about Mr. Hildebrandt, and because
he would be in the continual presence of his caregivers, the officers acceded to
that request, but only after showing the staff how the flex-cuffs functioned and
how to remove them. Id. Removal included simply cutting the plastic flex-cuffs
off with scissors. Id. At that point, the officers departed, leaving Mr.
Hildebrandt in the custody of ARCA staff for transport to the Las Vegas facility
and release from the plastic restraints. At the time the officers left,
Mr. Hildebrandt was calm. Incident Report of R. Johnson, id. at 66.
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The plaintiff and her sister then arrived on the scene, followed within an
hour by her parents. 3
According to the plaintiff, when she arrived she observed
Mr. Hildebrandt sitting on the couch “in extreme pain and discomfort,” “moaning,
crying, and at times screaming in pain.” Lucero Aff., id. at 71. The plaintiff’s
affidavit does not allege any particular cause or causes of what she described,
whether from the prolonged altercation with staff, Hildebrandt’s mental condition,
or from anything the officers did. She goes on to assert that “[t]he flex cuffs
were tight on [Mr. Hildebrandt’s] wrists” and those on his ankles “prevented him
from walking.” Id. 4
However, except for conclusory statements in her complaint, the plaintiff
does not assert that Officers Wood and Johnson injured Mr. Hildebrandt in any
identifiable way, or used excessive force in applying the flex-cuffs. Specifically,
for example, neither the plaintiff’s affidavit nor any other submission alleges that
the flex-cuffs restricted Mr. Hildebrandt’s circulation, or cut, bruised or even
marked his hands, wrists or ankles. Further, the plaintiff’s complaint and
affidavit do not allege that Officers Wood and Johnson injured or mistreated Mr.
3
The times listed in the officers’ reports and Jean Lucero’s affidavit are
inconsistent with the narrated sequence of events. Evidently, however, the
officers had left before the plaintiff arrived.
4
In the district court the plaintiff was ambiguous regarding the ankle
restraints, representing in her statement of facts to the court that Mr. Hildebrandt
“was virtually unable to walk.” Pl.’s Resp. at 3, Appellant’s App. at 53.
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Hildebrandt in any way, or allowed anyone else to do so, during the forty-five
minutes or so that they were on the scene.
In any event, the plaintiff does not allege that Mr. Hildebrandt’s moaning,
crying or appearance of pain which she observed on arrival continued for any
length of time, and she does not dispute that he was calm later in the evening.
See White Aff., id. at 38. In her brief on appeal, she also concedes that, “Mr.
Hildebrandt was calm when the Officers left.” Appellee’s Br. at 4.
Depending on whether one credits the plaintiff’s recitation of facts in her
complaint or her affidavit, officials from the Mental Health Division of the New
Mexico Department of Health were also on the scene either when the officers
arrived, or not too long after. Those state officials fully supported and
participated in the decision to seek a doctor’s certification for Hildebrandt’s
commitment to the Las Vegas Medical Center, and approved staff transport of
Hildebrandt for that purpose. Furthermore, those state officials did not disagree
with the staff determination that for safety reasons Mr. Hildebrandt’s restraints
should be kept in place during the evening.
As it turned out, the doctor did not arrive at Hildebrandt’s residential
facility until approximately 10:00 p.m. In the interim, despite family requests to
remove the flex-cuffs, ARCA staff kept the flex-cuffs in place, except for cutting
one wrist restraint to allow Mr. Hildebrandt to eat a piece of fruit. Due to the
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lateness of the hour when the doctor arrived, ARCA staff decided not to transport
Mr. Hildebrandt to Las Vegas until the next morning.
At about 11:30 p.m., Mr. Hildebrandt’s father called the Albuquerque
police department to request that an officer be sent to the ARCA facility to
remove the flex-cuffs because staff members refused to do so. Lucero Aff.,
Appellant’s App. at 72. Officer Bret White responded and removed the restraints,
over staff objections, after being advised that Mr. Hildebrandt would not be
transported until the next morning. White Aff., id. at 38. Mr. Hildebrandt
appeared to Officer White to be calm, and he stated that he just wanted to go to
bed. Id. Officer White did not observe any actual or apparent injury to Mr.
Hildebrandt at the time he removed the flex-cuffs, and the plaintiff does not
allege any fact to the contrary. Id. Thereafter, Mr. Hildebrandt went to bed, and
was transported to the Las Vegas Medical Center the next morning without
incident.
Plaintiff filed this suit against Officers Johnson and Wood, the City of
Albuquerque, and others, alleging various federal and supplemental state claims.
The only part of the suit which is before us is the district court’s denial of the
defense of qualified immunity from suit as to the plaintiff’s claim pursuant to 42
U.S.C. § 1983 alleging that under the facts described above, Officers Johnson and
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Wood violated Fred Hildebrandt’s rights under the Fourth Amendment to the
United States Constitution.
The officers, together with the City of Albuquerque, filed a motion for
summary judgment on that claim based on qualified immunity. 5
In denying the
motion, the district court concluded that the officers acted reasonably under the
Fourth Amendment in their initial seizure and detention of Mr. Hildebrandt, but
that it was constitutionally unreasonable to “abandon” Mr. Hildebrandt, leaving
him with his attending staff members, unsupervised or monitored by police,
restrained for a prolonged period of time, and without immediate transport to a
mental health evaluation facility. It is from those determinations that the officers
appeal, contending that their actions did not violate any clearly established law of
which a reasonable police officer should have been aware, and, further, that their
actions were objectively reasonable under the circumstances. They also contend
that the community caretaker exception under the Fourth Amendment should
apply.
Although the City of Albuquerque joined in the motion for summary
5
judgment and was named in the notice of appeal from the denial of that motion,
the appellants’ brief does not pursue any argument with respect to the City.
Accordingly, we do not address that subject.
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DISCUSSION
Government officials are entitled to qualified immunity from suit in actions
brought under § 1983 when their “conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). Qualified immunity is
“an entitlement not to stand trial or face the other burdens of litigation.”
Mitchell , 472 U.S. at 526. We “review[] the denial of qualified immunity on
summary judgment de novo. ” Verdecia v. Adams , 327 F.3d 1171, 1174 (10th Cir.
2003) (quotation omitted).
“In a suit against an officer for an alleged violation of a constitutional
right, the requisites of a qualified immunity defense must be considered in proper
sequence.” Saucier v. Katz , 533 U.S. 194, 200 (2001). The initial inquiry is:
“Taken in the light most favorable to the party asserting the injury, do the facts
alleged show the officer’s conduct violated a constitutional right?” Id. at 201. If
it is determined that “no constitutional right would have been violated were the
allegations established, there is no necessity for further inquiries concerning
qualified immunity.” Id. However, if a violation is made out, “the next,
sequential step is to ask whether the right was clearly established. This inquiry, it
is vital to note, must be undertaken in light of the specific context of the case, not
as a broad general proposition . . . .” Id. Thus, “[t]he relevant dispositive inquiry
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in determining whether a right is clearly established is whether it would be clear
to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Id. at 202 (citing Wilson v. Layne , 526 U.S. 603, 615 (1999)). See
Smith v. Cochran , 339 F.3d 1205, 1215 (10th Cir. 2003); Holland ex rel.
Overdorff v. Harrington , 268 F.3d 1179, 1185-86 (10th Cir. 2001).
It remains the burden of the defendant, as the moving party on summary
judgment, to prove that there are no genuine issues of material fact and that he or
she is entitled to judgment as a matter of law. Smith , 339 F.3d at 1211; Medina
v. Cram , 252 F.3d 1124, 1128 (10th Cir. 2001); Hinton v. City of Elwood , 997
F.2d 774, 779 (10th Cir. 1999).
As indicated above, in following these sequential steps it is important to
ask the relevant questions in the context of each particular case as they pertain
both to the circumstances the officer reasonably believed he or she confronted,
and what a reasonable officer would understand the law to require in those
circumstances. The facts are necessarily intertwined with the analysis at each
level.
A. Do the facts alleged show a violation of a constitutional right?
The analysis of whether the plaintiff has shown that the officers’ conduct
violated a constitutional right begins with identifying the right in question. See
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Graham v. Connor , 490 U.S. 386, 395 (1989). That is an important inquiry in this
case, especially since the district court found, and the plaintiff concedes, that
Officers Wood and Johnson acted lawfully at the outset when they placed cuffs on
Mr. Hildebrandt. See Appellee’s Br. at 27 (“[P]robable cause for the detainment
of Fred Hildebrandt is not in dispute, a fact well noted by the [district] Court in
its Opinion.”). Accordingly, we proceed along the custodial continuum “and then
determine what constitutional protection controls at which particular juncture.”
Austin v. Hamilton , 945 F.2d 1155, 1158 (10th Cir. 1991) ( overruled on other
grounds , Johnson v. Jones , 515 U.S. 304 (1995)).
The pivotal point identified by the district court is when, after waiting
about forty-five minutes, the officers terminated their involvement, leaving Mr.
Hildebrandt, still restrained, in the custody of staff. The district court termed this
an abandonment of Hildebrandt by the police, with concomitant failures by the
police to continue to monitor Hildebrandt and to transfer him to a medical center.
On appeal, the plaintiff reasserts these acts and omissions as the gravamen
of her constitutional violation claim, stating:
In this case, the District Court properly held that Officers Johnson
and Wood violated the Fourth Amendment in the manner by which
they carried out the seizure of Fred Hildebrandt by restraining him,
hand and foot, and then abandoning him for an indefinite period of
time without monitoring or supervising him and without immediately
transporting him to an appropriate mental health facility for
evaluation.
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Appellee’s Br. at 6 (emphasis added).
Abandonment is the core of this theme, and, perforce, divides the episode
into periods before and after the officers left. The district court applied Fourth
Amendment analysis to both periods, which we now proceed to examine.
Fourth Amendment analysis applies to the initial forty-five minutes when
the officers further restrained Hildebrandt (he was already restrained by staff) by
placing plastic flex-cuffs on him. Even in a non-arrest mental health situation
that act constituted a seizure. See Pino v. Higgs , 75 F.3d 1461, 1468 (10th Cir.
1996). But, as indicated above, the restraint at the outset was wholly lawful.
From that point to the time the officers departed, virtually nothing happened
warranting mention. Specifically, except, possibly, for the two matters discussed
below, nothing is alleged by the plaintiff or emphasized by the district court to
have been done or omitted in violation of Hildebrandt’s Fourth Amendment
rights. It appears that everyone simply waited, without incident, for the doctor
and a transport van to arrive.
There are sporadic allegations that the cuffs were tight. But, as the facts
set out above show, those references by the plaintiff simply do not make out a
genuine issue of material fact. The plaintiff’s affidavit limits itself to alleged
tightness and draws no express connection between that allegation and allegations
of pain or injury. And, the plaintiff concedes that Mr. Hildebrandt was calm
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when the officers left, and later in the evening as well—a condition inconsistent
with pain. Significantly, the plaintiff’s complaint in paragraphs 46-58 includes a
specific allegation of excessive force with respect to other officers in connection
with an event the previous year; but, it makes no excessive force claim in the
allegations against Officers Wood and Johnson. Amended Complaint, Supp. App.
at 38-40. In any event, the plaintiff’s summary of her claims on appeal, as quoted
above, does not focus on any alleged tightness of the cuffs as a core claim.
Furthermore, the question of whether the officers should have transported
Mr. Hildebrandt to a medical center is not seriously pursued as a claimed
violation of the Fourth Amendment in relation to the initial forty-five minute
wait. That wait was for the arrival of a doctor, who had already been sent for,
carrying commitment papers, at which point staff planned to transport Mr.
Hildebrandt to a medical center.
In these circumstances, the officers’ conduct during the initial forty-five
minutes when they were dealing with a potentially dangerous, mentally and
behaviorally challenged man, and before they terminated their involvement, does
not show a violation of Mr. Hildebrandt’s Fourth Amendment rights against
unreasonable seizure. None of the cases cited by the district court, involving
vastly different facts, support a different conclusion. See Tennessee v. Garner ,
471 U.S. 1 (1985) (and cases cited therein); Heitschmidt v. City of Houston , 161
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F.3d 834 (5th Cir. 1998); and Franklin v. Foxworth , 31 F.3d 873 (9th Cir. 1994).
The succeeding events are the ones which are more central to the issues before us.
At the end of the initial forty-five minutes the officers were informed that it
would be another forty-five minutes before the doctor would arrive with
commitment papers and transport would occur. Thereupon, the officers decided
to leave; but, at staff request, they left the plastic cuffs in place to insure that Mr.
Hildebrandt would not be a danger to himself or others before and during
transport to the medical center in an uncaged van. The officers made sure that
staff members knew how to remove the flex-cuffs, including simply cutting them
off with scissors. They then completely terminated their involvement with Mr.
Hildebrandt, with no ongoing or further police action contemplated. In short, Mr.
Hildebrandt was left restrained in the custody of staff but no longer seized by the
police who departed considering the incident closed.
The district court described the act of departure by the police as one of
abandonment of Mr. Hildebrandt, including, a fortiori, no further monitoring, and
no transport to a medical facility by the police. The court then proceeded to apply
Fourth Amendment analysis to the officers’ departure and the period thereafter.
We respectfully disagree. As indicated above, Mr. Hildebrandt was no longer
seized by the police. Staff had complete custody and control over Mr.
Hildebrandt, including decisions with regard to his continued restraint. It cannot
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be said in such circumstances that the express textual provisions of the Fourth
Amendment still applied.
If no explicit textual provision of the Constitution applies with respect to
the officers’ conduct, then the principle of substantive due process contained in
the Fourteenth Amendment applies. See County of Sacramento v. Lewis , 523
U.S. 833, 843 (1998). In particular, constitutional claims based on abandonment
by the police are analyzed under the substantive due process protections of the
Fourteenth Amendment. See, e.g. , Robles v. Prince George’s County , 302 F.3d
262 (4th Cir. 2002), cert. denied , 123 S. Ct. 1634 (2003); Davis v. Brady , 143
F.3d 1021 (6th Cir. 1998); Stemler v. City of Florence , 126 F.3d 856 (6th Cir.
1997); Wood v. Ostrander , 879 F.2d 583 (9th Cir. 1989).
The test for establishing a substantive due process challenge to executive
action “is whether the behavior of the governmental officer is so egregious, so
outrageous, that it may fairly be said to shock the contemporary conscience.”
Lewis , 523 U.S. at 847-48 n.8.
Nothing in these circumstances even approaches that stringent test. Mr.
Hildebrandt was, at the very least, a quasi-institutionalized individual, housed in a
state-funded mental health care residential facility, in the care, custody and
control of government-funded professional staff trained to be caretakers of people
with the type of disabilities suffered by Hildebrandt. To the officers’ knowledge,
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these trained mental health staff people were in charge of Mr. Hildebrandt and
acting for the state in that capacity.
Officers Wood and Johnson were called into this institutional setting to
assist staff. They were informed that these state-funded professionals, in the
exercise of their judgment as to the necessary steps to take, had already consulted
with a doctor, that the doctor was en route with commitment papers, and that staff
would then transport Hildebrandt to the state hospital at Las Vegas, New Mexico.
That information was entirely accurate. The ensuing delay was not anticipated.
The officers waited forty-five minutes and then were advised it would be
another forty-five minutes before the doctor arrived and Hildebrandt would be
transported. The officers’ decision to leave was discretionary. Their decision to
leave the restraints on Mr. Hildebrandt at the request of staff was not
unreasonable considering (1) the fact that Hildebrandt could be unpredictably
explosive and dangerous; (2) that trained staff operating in this institution were in
a better position than the officers to make informed judgments in the matter and
would act properly and professionally with respect to their charge, Fred
Hildebrandt; and (3) that Mr. Hildebrandt was already fully in the state’s mental
health care system and was simply being referred within that system rather than
needing introduction into the system by the police.
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As it happened, the doctor arrived later than expected, and several hours
passed before Mr. Hildebrandt was released from his plastic cuffs. Except for the
fact of this continued restraint, there is no further material allegation of
mistreatment such as, for example, a refusal by staff to let Mr. Hildebrandt use
the toilet. Mr. Hildebrandt’s family were there to comfort and monitor him. And,
of particular note, officials of the New Mexico Department of Health were on the
scene and fully supportive of the staff, including the plan to transport Hildebrandt
to the state hospital in Las Vegas, New Mexico.
The officers reasonably, although as it turned out, mistakenly, believed that
the doctor would arrive, and transport would occur, within an hour. Thus, there
was no intention by the officers to leave Mr. Hildebrandt restrained for either an
indefinite or prolonged period of time. See Saucier , 533 U.S. at 205 (if an officer
reasonably but mistakenly believed certain circumstances to exist, the officer’s
actions might be justified).
The district court also stated that it was unreasonable for the officers to
leave Mr. Hildebrandt with staff because they would have a strong motive to
retaliate against him and, thus, cause him harm. Memo. Op. and Order at 10,
Appellant’s App. at 108-09. But the complaint makes no such claim, the facts do
not bear it out, family and state officials were on the scene to monitor what
happened, and, finally, professional staff are entitled to a presumption that they
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would act professionally. No fact exists in the record which would suggest that
the officers had cause to think otherwise.
Finally, there remains the matter of New Mexico statutes and Albuquerque
Police Department procedures relating to interaction by the police with people
with mental disorders. Most prominent among these is N.M. Stat. Ann.
§ 43-1-10. 6
The plaintiff makes much of the officers’ alleged failure to transport
6
The statute provides, in pertinent part:
A. A peace officer may detain and transport a person for
emergency mental health evaluation and care in the absence of a
legally valid order from the court only if:
....
(3) the peace officer, based upon his own observation
and investigation, has reasonable grounds to believe that the person,
as a result of a mental disorder, presents a likelihood of serious harm
to himself or others and that immediate detention is necessary to
prevent such harm. Immediately upon arrival at the evaluation
facility, the peace officer shall be interviewed by the admitting
physician or his designee; or
(4) a licensed physician or a certified psychologist has
certified that the person, as a result of a mental disorder, presents a
likelihood of serious harm to himself or others and that immediate
detention is necessary to prevent such harm. Such certification shall
constitute authority to transport the person.
....
D. Any person detained under this section shall, whenever
possible, be taken immediately to any evaluation facility. Detention
facilities shall be used as temporary shelter for such persons only in
cases of extreme emergency for protective custody, and no person
taken into custody under the provisions of the code shall remain in a
detention facility longer than necessary and in no case longer than
twenty-four hours. . . .
(continued...)
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Hildebrandt for an emergency mental health evaluation pursuant to the statute.
However, as the district court correctly observed, neither this statute nor various
internal police procedures confer federal constitutional rights, although the statute
may be part of the analytical process. Furthermore, in these circumstances it
cannot be said that the emergency evaluation statute even applied or, if so, that it
was violated.
First, the statute simply establishes conditions under which an officer may
detain and transport, for an emergency evaluation, which conditions include
waiting for a doctor’s certification as was the case here. Second, persons
“detained under this section shall, whenever possible , be taken immediately to an
evaluation facility.” Id. (emphasis added). That was also substantially the
process underway here. Subsequently, the officers discontinued their detention,
leaving Hildebrandt with staff for transport, which would be consistent with N.M.
Stat. Ann. 43-1-22, dealing with transport from one mental health facility to
another. Furthermore, the statute does not prohibit mental health care
professionals, including officials from the Department of Health, from
transporting the individual and does not require an officer to effect the
transportation if other qualified transportation is planned and available.
(...continued)
6
N.M. Stat. Ann. 43-1-10 (emphasis added).
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In summary, we conclude that the facts, viewed favorably to the plaintiff,
do not show that the officers’ conduct violated Mr. Hildebrandt’s Fourth or
Fourteenth Amendment rights. Therefore, the officers are entitled to summary
judgment on those claims.
B. Qualified Immunity – clearly established law
Alternatively, even if it is assumed, arguendo, that a constitutional
violation has been made out, we conclude that the officers are entitled to qualified
immunity from suit on these claims.
The officers are entitled to qualified immunity unless, under clearly
established law, it would have been clear to a reasonable officer that his or her
conduct violated a constitutional right in the particular situation. “The law is
clearly established when a Supreme Court or Tenth Circuit decision is on point, or
if the clearly established weight of authority from other courts shows that the
right must be as plaintiff maintains.” Roska v. Peterson , 328 F.3d 1230, 1248
(10th Cir. 2002) (citing Farmer v. Perrill , 288 F.3d 1254, 1259 (10th Cir. 2002)).
The contours of the right must be sufficiently clear that an objectively reasonable
officer would understand that what he or she is doing violates that right. See
Anderson v. Creighton , 483 U.S. 635, 639-40 (1987). So, although even novel
fact situations may be encompassed in clearly established law, see Hope v. Pelzer ,
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536 U.S. 730, 741 (2002), that is only so when the state of the law is sufficiently
clear to give the officers fair warning that their actions would be unconstitutional.
Id.
The district court candidly acknowledged that it could find no case law
covering the type of police conduct that the court found to be unconstitutional
here: “The issue of abandonment of the seized person just doesn’t come up.” See
Memo. Op. and Order at 10, Appellant’s App. at 107. Instead, the court relied
upon the general tenets of reasonableness, and the commonsense teachings of the
Fourth Amendment, relying especially on two examples which do not come close
to the facts here: Heitschmidt , 161 F.3d 834, and Franklin , 31 F.3d 873. Both
cases deal with egregious treatment of seized persons during the time officers
were present, and exercising custody and control.
In contrast, of the abandonment cases which we have found, cited above,
the one closest to the violation found by the district court here held that the
relevant law was not clearly established, and affirmed a grant of qualified
immunity. See Robles , 302 F.3d at 270-71 (man handcuffed to a metal pole in a
deserted parking lot, in the middle of the night, and left to be picked up by
officers from another jurisdiction).
Although it is not necessary to have cases covering identical fact situations,
broad, general propositions are insufficient. It must be clear to a reasonable
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officer that his conduct was unlawful in the situation he confronted . That was not
the case here. Accordingly, as an alternative holding, the officers are entitled to
qualified immunity.
CONCLUSION
For the reasons stated, the judgment of the district court is REVERSED,
and the case is REMANDED with instructions to grant the officers’ motion for
summary judgment.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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