Fogarty v. Gallegos

FILED
United States Court of Appeals
Tenth Circuit

April 18, 2008
Elisabeth A. Shumaker
Clerk of Court
PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOHN D. FOGARTY,

Plaintiff-Appellee,

v.

GILBERT GALLEGOS; CITY OF
ALBUQUERQUE,

Defendants, Nos. 06-2238 & 06-2279

and

JOHN GONZALES; DONALD
KEITH; MICHAEL FISHER;
STEVEN HILL; NICK
GONZALES; DAVE HUBBARD,
in their individual capacities,

Defendants-Appellants.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CIV-05-26 WJ/LFG)
Jerry A. Walz, Walz and Associates, Cedar Crest, New Mexico, for Defendants-
Appellants.

Luis Robles, Robles, Rael & Anaya, P.C., Albuquerque, New Mexico for
Defendants-Appellants.

Paul J. Kennedy (Mary Y.C. Han, with him on the briefs), Kennedy & Han, P.C.,
Albuquerque, New Mexico for Plaintiff-Appellee.

Before LUCERO, EBEL, and HOLMES, Circuit Judges.

LUCERO, Circuit Judge.

Plaintiff-Appellee John D. Fogarty brought this action against six

Albuquerque Police Department (“APD”) officers and supervisors

(“defendants”), 1 alleging constitutional violations under 42 U.S.C. § 1983 as well

as state law tort claims. On appeal, defendants assert that they are entitled to

qualified immunity from the § 1983 claims and summary judgment on certain of

Fogarty’s state law tort claims. Exercising limited jurisdiction over this

interlocutory appeal pursuant to Mitchell v. Forsyth, 472 U.S. 511 (1985), we

affirm the district court’s denial of summary judgment to John Gonzales, Nick

Gonzales, Steven Hill, and Dave Hubbard, reverse the denial of summary

1
Defendants are John Gonzales, Donald Keith, Michael Fisher, Steven Hill,
Nick Gonzales, and Dave Hubbard.

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judgment to Donald Keith, and dismiss defendants’ state-law appeals for lack of

jurisdiction.

I

A

Fogarty’s claims arise from his March 20, 2003, arrest by APD officers

during an antiwar protest and march. Although the protest was chronicled on

videotape, the parties vigorously dispute significant details surrounding the

actions of the APD, Fogarty, and other protesters. We thus set forth a general

description of events here, but discuss the district court’s factual findings as we

address defendants’ specific contentions.

In the days leading up to the March 2003 invasion of Iraq, the area of

downtown Albuquerque near the University of New Mexico (“UNM”) campus

became home to several antiwar protests. Protest leaders planned a demonstration

for March 20, 2003, the day after the United States invaded Iraq, and met

beforehand with the APD to discuss logistics. The protest was to take place in

part on UNM property, where protests were allowed on its campus without

restriction under the university’s policy, but also on the city streets, where

defendants claim that city and state law requires permits for large gatherings or

marches. Although the protesters had not obtained a permit, APD coordinated

with protest leaders and planned to close one lane of the street adjacent to the

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UNM bookstore, where the organizers planned to gather, if necessary. The exact

nature and extent of APD’s acquiescence to the protest is disputed by the parties.

Around 5:00 p.m. that evening, a crowd gathered on the UNM campus to

express opposition to the war. Defendant Captain John Gonzales supervised the

APD response, consisting of up to 75 officers and including SWAT teams, equine

units, canine units, traffic officers, and a bomb squad. Later, John Gonzales also

mobilized Emergency Response Teams (“ERTs”). Members of SWAT and ERT

wore face-concealing gas masks, and ERT uniforms did not have any identifying

marks such as the officers’ names or badge numbers. 2 Fogarty alleges that

officers wearing standard uniforms concealed their badge numbers with tape.

At the protest’s peak, between 500 and 1000 individuals were present,

spilling over onto Albuquerque city sidewalks fronting UNM and eventually

filling the crosswalks of adjacent streets. According to APD, the protesters’

occupation of the crosswalks effectively blocked all traffic on Central Avenue,

the street running past the bookstore. To ensure the crowd’s safety, APD closed

the street just east of the bookstore. After the street was closed, the crowd

2
Officers’ uniforms lacked identifying marks due to an APD policy in
effect at the time of the protest. According to the defendants, the policy was
designed to prevent protestors from using name tags to direct personalized insults
at an officer, which might provoke the officer to respond inappropriately out of
anger. APD officials deny that the policy was intended to avoid complaints or
lawsuits against individual officers. As a result of an investigation into APD’s
response to the March 20 protest, the department now requires identifying
information on ERT uniforms.

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flooded into the rest of the street. The protesters then began moving west on

Central Avenue. Eventually, they encountered a police skirmish line blocking the

avenue, at which point they turned around and began walking east, back toward

the bookstore.

As the crowd reversed direction, roughly an hour after the protesters first

gathered, John Fogarty arrived at the bookstore to join the group. Fogarty, a

physician and faculty member at UNM, was accompanied by his wife, a friend,

and his friend’s fiancee. Fogarty observed that several streets had been closed

and assumed that police were permitting demonstrators to march in the streets.

Fogarty then joined the main group of marchers, which by now was four blocks

away, heading back east toward the bookstore. According to Fogarty, the mood

of the group at this time was “very peaceful,” a characterization which defendants

vehemently contest. Fogarty noticed that some protestors had formed a drum

circle, and that several people were dancing and singing.

When the march reached the bookstore, Fogarty and his friend went back to

his friend’s car to collect their drums. After retrieving the instruments, Fogarty

and his friend joined a drum circle of approximately ten protesters in the

westbound lane of Central Avenue, in front of the bookstore. According to APD

officers, the drummers were inciting the crowd and making it difficult to

communicate, whereas Fogarty claims that they were “play[ing] a really nice

samba” without being excessively loud; he played the drum with his hands,

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although many others used sticks. Fogarty stated that his drumming was his

“personal way of expressing something through music,” in this case, his

opposition to the Iraq war. He remained with the other drummers for

approximately 20 minutes, drumming intermittently during that time.

While the crowd was gathered around the bookstore, police made

announcements over the loudspeaker system ordering protesters to either disperse

or return to UNM property. Fogarty testified that he could not understand these

“garbled and unintelligible” warnings, and it is undisputed that APD never

ordered the drummers to stop playing. Evidence presented to the district court

indicated that this communication problem may have been due to the noise of the

drumming, a malfunctioning speaker system, or the failure of some police sirens

to shut down prior to the announcement.

APD officers followed the warnings by deploying tear gas. After the first

volley of gas, Fogarty moved onto the steps of the UNM bookstore because he

“was there for a peaceful demonstration” and wanted to avoid the tear gas.

According to Fogarty, this was the first time he understood that APD wanted the

protesters out of the streets. Police then repeated the order to clear the streets and

move on to UNM property, which Fogarty reported hearing. Most people

complied, but a handful of demonstrators remained in the streets.

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 At some point during these events, John Gonzales ordered APD forces to

“remove the drums.” 3 Gonzales claims that this order meant that officers should

first try to stop the drumming and then arrest the drummers only if necessary, but

subordinate officers testified that they understood the statement as a direct order

to arrest the drummers. In response to Gonzales’ order, police teams moved in

and arrested some of the drummers who remained in the street, but not Fogarty,

who had already left the street.

While he was standing on the UNM campus, Fogarty alleges that an APD

officer shot him with some sort of projectile, perhaps a “pepper ball” or some

other variety of “less lethal munition.” 4 The police also deployed a second volley

of tear gas, but from his location on the bookstore steps, Fogarty was only

minimally affected by the gas.

Four to five APD officers then approached Fogarty as he knelt on the steps.

Fogarty does not remember if he was drumming at the time. The officers, whom

Fogarty cannot positively identify, picked him up and began leading him down

3
The precise sequence of these events is unclear. Gonzales stated that the
drummers were removed prior to the use of any tear gas, but Fogarty maintains,
and a videotape suggests, that he was arrested after tear gas had been deployed.
4
The police deployed a number of different species of “less lethal”
munitions during the protest. Of primary relevance here are: (1) “pepper balls,”
rifle-fired projectiles that break into pieces on impact and release oleoresin
capsicum powder (commonly known as mace), thereby causing both pain at the
point of impact and irritation of the targeted individual’s eyes and breathing
passages; (2) canisters of CS, an aerosolized irritant commonly known as tear gas;
and (3) “silver candles,” canisters which release smoke.

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the steps. Fogarty had difficulty walking because the drum was attached to his

belt. As officers took him toward the street and closer to the tear gas, Fogarty,

who has asthma, suffered an “acute broncospasm” that rendered him unable to

walk further. Officers then forced Fogarty to the ground, pulling his arms behind

his back and forcing the palm of his hand toward his forearm in a “hyperflexion

position.” They handcuffed him, ripped the drum off his belt, and dragged him

down the street. Eventually realizing that Fogarty was having an asthma attack,

officers stopped to allow him to catch his breath.

Fogarty was then taken into custody in a police van and later transported by

ambulance to a hospital. APD released Fogarty without charging him with any

crime. Despite clear instructions that each officer was to fill out an arrest report,

no report was filed on Fogarty’s arrest. As a result of his encounter with the APD

officers, Fogarty suffered a torn tendon in his wrist and was treated at the hospital

for asthma.

Defendants’ individual roles in Fogarty’s arrest are the subject of a spirited

factual dispute. Fogarty was never able to identify the officers who arrested him,

in part because ERT uniforms lacked name tags or badge numbers and no one

completed an arrest report for Fogarty. 5 Fogarty, however, makes several

allegations linking defendants to his arrest.

5
The district court was “perplex[ed]” that, despite the existence of a
videotape documenting the arrest, 27 volumes of discovery, and 30 depositions,
no witness could positively identify the arresting officers.

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 John Gonzales commanded the group of officers who responded to the

protest and ordered the drummers removed. Fogarty also stated that he saw an

officer, whom the district court concluded might have been John Gonzales,

witnessing his arrest, but the record on this point is not clear.

Sergeant Steven Hill led a SWAT team, which included Nick Gonzales and

Dave Hubbard. In response to the order to remove the drummers, he and his team

began arresting people around the area of the bookstore. Although Hill stated that

he witnessed Fogarty’s arrest, he could not say with certainty which officers

actually seized Fogarty. Both Nick Gonzales and Hubbard deny arresting

Fogarty.

Sergeant Donald Keith supervised a group of ERT officers during the

protest, but states that he only arrested a single drummer who was not Fogarty.

Keith testified that he and his team were on Central Avenue, not on UNM

property.

Officer Michael Fisher was a member of Keith’s team, and he formed part

of the skirmish line that moved protesters eastward toward the bookstore. Fisher

stood behind the first line of police officers and was equipped with a pepper-ball

gun. He admits to firing at one protester who was in the middle of Central

Avenue, but denies shooting Fogarty on the UNM bookstore steps.

B

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 Fogarty brought suit in the United States District Court for the District of

New Mexico, alleging federal constitutional and state law tort claims against

individual APD officers, APD’s chief of police, and the City of Albuquerque. 6

His second amended complaint contains five counts relevant to this appeal. Of

these, three are civil rights claims brought under 42 U.S.C. § 1983: unlawful

arrest in violation of the Fourth and Fourteenth Amendments, excessive use of

force in violation of the Fourth and Fourteenth Amendments, and supervisory

liability for these alleged constitutional violations. The remaining two counts

concern intentional state torts of assault, battery, and false arrest, as well as

unintentional torts under theories of negligence, gross negligence, and

recklessness.

After filing his first complaint, Fogarty conducted extensive discovery,

including depositions of a substantial number of officers who responded to the

protest. By Fogarty’s own admission, these discovery efforts proved fruitless in

ascertaining the identity of the remaining officers who participated in his arrest.

Following discovery, defendants moved for summary judgment. The court

granted summary judgment to (1) John Gonzales on Fogarty’s assault and battery

claim, (2) Keith on all of Fogarty’s claims except for § 1983 supervisory liability,

6
The present consolidated appeal encompasses only the claims against the
individual officers and supervisors, and does not include claims against Gilbert
Gallegos, who was APD Chief of Police at the time of the incident, or the City of
Albuquerque.

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and (3) Fisher on all claims except assault and battery. All remaining summary

judgment motions were denied, including defendants’ motions for summary

judgment based on qualified immunity. Defendants now appeal the district

court’s adverse rulings.

II

A

Before turning to the merits of this appeal, we must first address the extent

of our jurisdiction over the issues presented. Although orders denying summary

judgment are ordinarily not appealable, we have interlocutory jurisdiction over

denials of qualified immunity at the summary judgment stage to the extent that

they “turn[] on an issue of law.” Mitchell, 472 U.S. at 530. Under this limited

jurisdiction, we may review the district court’s abstract legal conclusions, such as

whether the law was clearly established at the time of the alleged infraction. See

Behrens v. Pelletier, 516 U.S. 299, 313 (1996). At this stage, however, we are

not at liberty to review a district court’s factual conclusions, such as the existence

of a genuine issue of material fact for a jury to decide, or that a plaintiff’s

evidence is sufficient to support a particular factual inference. 7 See Johnson, 515

7
Defendants contend that we also have jurisdiction to review whether the
disputed issues of fact found by the district court are “material,” asserting that our
precedents conflict on this issue. We see no inconsistencies in our prior case law.
We would have jurisdiction to reverse if the only factual disputes identified by
the district court were legally irrelevant to the issue of qualified immunity, as we
did in Blossom v. Yarbrough, 429 F.3d 963, 967-68 (10th Cir. 2005). In this
(continued...)

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U.S. at 316; Walker, 451 F.3d at 1155 (“We lack jurisdiction over these

challenges to the district court’s findings to the extent they challenge the

existence of disputed facts for summary judgment purposes.”); Garrett v.

Stratman, 254 F.3d 946, 952 (10th Cir. 2001) (“We must scrupulously avoid

second-guessing the district court’s determinations regarding whether [plaintiff]

has presented evidence sufficient to survive summary judgment.” (quotation

omitted)). When the factual and legal inquiries blur because the district court

fails to make its factual assumptions explicit, we must “undertake a cumbersome

review of the record” to ferret out facts that the district court “likely assumed.”

Behrens, 516 U.S. at 313 (quoting Johnson, 515 U.S. at 319). Those facts

explicitly found by the district court, combined with those that it likely assumed,

7
(...continued)
case, however, the district court has identified a wide number of disputed facts, at
least some of which are legally relevant. Our analysis will thus necessarily
disregard those facts which have no bearing on our legal conclusions as we
“examin[e] the facts presented on summary judgment in the light most favorable
to the plaintiff, to determine whether they amount to a violation of a
clearly-established right.” Walker v. City of Orem, 451 F.3d 1139, 1155 (10th
Cir. 2006).
Defendants also note that in Wilson v. Meeks, 98 F.3d 1247 (10th Cir.
1996), we exercised pendent jurisdiction to reach an issue of evidentiary
sufficiency in an interlocutory § 1983 appeal, id. at 1251. We did so, however,
only to preserve the law of the case in light of the Supreme Court’s intervening
decision in Johnson v. Jones, 515 U.S. 204, 316 (1995). Meeks, 98 F.3d at 1251.
Outside of such unusual circumstances, we cannot take pendent jurisdiction over
otherwise nonreviewable factual determinations, lest we swallow the rule of
Johnson.

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then form the universe of facts upon which we base our legal review of whether

defendants are entitled to qualified immunity.

B

Defendants also appeal the district court’s denial of summary judgment on

several of Fogarty’s state-law claims. As explained, we have interlocutory

jurisdiction only over the district court’s denial of qualified immunity, and thus

may reach defendants’ state law arguments only by exercising pendent appellate

jurisdiction. Swint v. Chambers County Comm’n, 514 U.S. 35, 42 (1995). “It is

appropriate to exercise pendent appellate jurisdiction only where resolution of the

appealable issue necessarily resolves the nonappealable issue, or where review of

the nonappealable issue is necessary to ensure meaningful review of the

appealable one.” Berrey v. Asarco, Inc., 439 F.3d 636, 647 (10th Cir. 2006).

Defendant Fisher urges us to review the district court’s denial of summary

judgment on the state-law torts of assault and battery. The district court found a

“question of disputed fact about whether it was Defendant Fisher who fired the

pepper ball which hit [Fogarty].” Fisher’s arguments rest entirely on New

Mexico state law and the propriety of the district court’s unreviewable factual

conclusions. As such, this issue is not “inextricably intertwined with [the district

court’s] decision to deny . . . qualified immunity,” nor is consideration of the

issue “necessary to ensure meaningful review of the” qualified immunity rulings.

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Swint, 514 U.S. at 51. We therefore decline pendent interlocutory jurisdiction

over these state-law claims.

Defendants Nick Gonzales, Hill, and Hubbard also appeal the court’s denial

of summary judgment on Fogarty’s claims of assault and battery, but their briefs

present no argument in reference to these issues, and they appear to have been

waived. In any event, we have no difficulty concluding that these issues are not

inextricably intertwined with the district court’s qualified immunity

determinations. It would be inappropriate to reach these fact-intensive state-law

claims in this appeal.

Finally, John Gonzales, Nick Gonzales, Hill, and Hubbard argue that we

should dismiss the state-law false arrest claims against them because they had

probable cause to justify Fogarty’s arrest. In light of our conclusions regarding

probable cause in Part III.A, infra, our resolution of that appealable issue will not

“necessarily resolve[] the nonappealable issue” with any finality. Kirkland v. St.

Vrain Valley School Dist., 464 F.3d 1182, 1198 (10th Cir. 2006). We therefore

decline to exercise jurisdiction over this issue.

III

A court presented with a summary judgment motion based on qualified

immunity must first answer a threshold question: “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?” Saucier v. Katz, 533 U.S. 194, 201

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(2001). “[T]he next, sequential step is to ask whether the right was clearly

established.” Id. With regard to this second step, “[t]he relevant, dispositive

inquiry in determining whether a right is clearly established is whether it would

be clear to a reasonable officer that his conduct was unlawful” under the

circumstances presented. Id. at 202. As we have explained, in an interlocutory

appeal we must accept a district court’s determination that the evidence is

sufficient to support a particular factual inference, Garrett, 254 F.3d at 946, and

its closely related conclusion that genuine issues of fact exist for trial, Cortez v.

McCauley, 478 F.3d 1108, 1121 n.16 (10th Cir. 2007) (en banc).

Fogarty alleges two Fourth Amendment violations: unlawful arrest and

excessive use of force. The district court found that Fogarty had presented

evidence sufficient to deny qualified immunity on both claims. On appeal,

defendants argue that they are entitled to qualified immunity on both counts

because Fogarty’s evidence falls short of establishing a deprivation of a clearly

established constitutional right. In addition, certain officers raise specific

objections to the district court’s legal determinations. For purposes of clarity, we

first address the district court’s general conclusions regarding the lawfulness of

Fogarty’s arrest and the force used against him, and then separately consider

those arguments which relate only to certain individual defendants.

A

1

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 We begin with the district court’s denial of qualified immunity on

Fogarty’s allegation of unlawful arrest. Under the Fourth Amendment, arrests are

a variety of seizure, which occur “only when, by means of physical force or a

show of authority, [an individual’s] freedom of movement is restrained.” United

States v. Mendenhall, 446 U.S. 544, 553 (1980). Defendants do not contest that

Fogarty was arrested. As the district court found, APD officers handcuffed

Fogarty, moved him through the street against his will, and placed him into

custody in a police van.

It is also uncontested that the officers did not have a warrant to arrest

Fogarty. Their warrantless arrest of Fogarty therefore violates the Fourth

Amendment unless that arrest was supported by probable cause. United States v.

Edwards, 242 F.3d 928, 933 (10th Cir. 2001). In evaluating the existence of

probable cause, we consider whether the “facts and circumstances within the

officers’ knowledge, and of which they have reasonably trustworthy information,

are sufficient in themselves to warrant a man of reasonable caution in the belief

that an offense has been or is being committed.” Id. at 934 (quotation omitted).

Our determination on this score is an independent and objective one. Thus an

officer’s own subjective reason for the arrest is irrelevant, and it does not matter

whether the arrestee was later charged with a crime. See Devenpeck v. Alford,

543 U.S. 146, 152-53 (2004); Apodaca v. City of Albuquerque, 443 F.3d 1286,

1289 (10th Cir. 2006).

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 Central to this analysis is determining which crime, or crimes, defendants

could objectively and reasonably have believed that Fogarty committed.

Defendants argue that the arresting officers had probable cause to believe Fogarty

had violated New Mexico’s disorderly conduct statute. 8 N.M. Stat. Ann. § 30-21-

1(A) (defining disorderly conduct as “engaging in violent, abusive, indecent,

profane, boisterous, unreasonably loud or otherwise disorderly conduct which

tends to disturb the peace”). Although Fogarty states that an APD officer told

him during his arrest that he was being charged with “inciting a riot,” this

evidence of an officer’s subjective belief does not affect our inquiry. Instead, we

concern ourselves only with whether Fogarty’s conduct, as viewed objectively

and in the light most favorable to Fogarty, could establish probable cause to

believe he had engaged in disorderly conduct.

Under New Mexico law, disorderly conduct must meet two requirements.

The first requirement is that the conduct itself fall into one of the categories

8
In addition to disorderly conduct, defendants raise, for the first time, two
other possible justifications for Fogarty’s arrest: parading without a permit in
violation of Albuquerque Ordinance § 7-3-3(A), and walking in a street with an
adjacent sidewalk in violation of Albuquerque Ordinance § 8-2-7-7(A) and N.M.
Stat. Ann. § 66-7-339.
Ordinarily, we do not address issues raised for the first time on appeal, and
we decline to do so here. United States v. Alcaraz-Arellano, 441 F.3d 1252, 1260
(10th Cir. 2006). Because the district court did not have the opportunity to
address these arguments, it could not determine if genuine issues of material fact
existed with regard to these alleged violations, findings which we would be bound
to accept in this interlocutory appeal. Consequently, it would be inappropriate to
consider these proposed alternate foundations for probable cause.

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enumerated in the statute by being violent, abusive, indecent, profane, boisterous,

unreasonably loud, or otherwise disorderly. Id. The second prong measures the

potential effect of the conduct on others, requiring that it “tend to disturb the

peace.” State v. Oden, 484 P.2d 1273, 1274 (N.M. App. Ct. 1971) (holding that

“tend to disturb the peace” is an independent element of disorderly conduct).

Disturbing the peace requires “an act of violence, or . . . an act likely to produce

violence, or which, by causing consternation and alarm, disturbs the peace and

quiet of the community.” State v. Florstedt, 419 P.2d 248, 249 (N.M. 1966)

(quotation omitted).

Defendants contend that Fogarty’s drumming tended to disturb the peace

either by directly inciting a crowd to violence, or by preventing the police from

controlling unruly protesters by interfering with police communications. In cases

where the allegation of disorderly conduct is premised on the effect of a

defendant’s expression on others, New Mexico law requires that the evidence,

viewed in the light most favorable to the defendant, show that his expression “was

likely to incite the listeners to breach the peace.” State v. Hawkins, 991 P.2d

989, 992 (N.M. Ct. App. 1999). When examining similar allegations, New

Mexico courts have consistently focused on the potential for conduct to cause

violence or other serious public disruption. See State v. Doe, 583 P.2d 464, 466

(N.M. 1978) (holding that an angry challenge to a police officer’s traffic stop,

although made “in a loud voice” and with the defendant’s “fist clenched,” was not

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disorderly conduct because “no act of violence was attempted” nor was it

“apparent that [defendant’s] words or actions would produce violence or disturb

the peace”). By contrast, “the mere fact that people may have heard [an

individual’s expression], however loud or offensive [it] may have been, is

insufficient to support a charge of disorderly conduct.” Hawkins, 991 P.2d at

992. 9

The district court’s memorandum opinion contains a cursory summary of

the facts upon which it based its finding that officers lacked probable cause to

arrest Fogarty. Relying on those facts that the district court explicitly found as

well as others in the record that it likely assumed, see Behrens, 516 U.S. at 313,

we agree that under Fogarty’s version of events, he was arrested without probable

cause.

9
The dissent’s reliance on State v. Salas, 986 P.2d 482 (N.M. Ct. App.
1999), is misplaced. Just four months after that decision, the New Mexico Court
of Appeals held in Hawkins that an arrest for disorderly conduct was illegal. In
doing so, it construed Salas quite narrowly, stating that “there was no
evidence . . . that Defendant’s conduct bothered anyone other than the two
officers. Moreover, unlike the situation in Salas, Defendant did not clench his
fists or otherwise yell threats at [the arresting officer].” Id. at 488 (emphasis
added). Consistent with Doe, the court then approvingly cited an Alabama case
for the proposition that expression was not disorderly when it “did not contain a
threat and [was] not likely to cause a violent response.” Id. (citing Swann v. City
of Huntsville, 455 So. 2d 944, 950 (Ala. Crim. App. 1984)) (emphasis added).
This careful construction protects the constitutionality of a statute that necessarily
penalizes certain types of expression. See State v. James M., 806 P.2d 1063,
1066 (N.M. Ct. App. 1990) (holding that a defendant’s disorderly conduct
conviction did not violate the First Amendment because he was convicted for
expression that amounted to fighting words).

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 First, as to the nature of his conduct, Fogarty stated that he was not

drumming during the protest in an excessively loud manner. He was drumming

only with his hands, even though some of the other protesters were using sticks.

By contrast, defendants offered no countervailing evidence regarding the nature

of Fogarty’s drumming, or testify as to the bare essential fact necessary to

establish probable cause: namely, that they had seen Fogarty drum in a disorderly

manner. 10 Consequently, we cannot say that APD officers had probable cause to

arrest Fogarty for being “boisterous” or “unreasonably loud” when the district

court found sufficient support in the record for Fogarty’s assertion that he was

playing at a reasonable volume.

As to the second element, tending to disturb the peace, defendants argue

that Fogarty’s drumming threatened to incite the crowd to violence and interfered

with police communications. This, they contend, caused traffic to be blocked,

disrupted local business, and endangered the safety of the officers. Fogarty

presented contrary evidence to the district court, however. Viewing this evidence

10
Defendants urge us to invoke the “fellow officer rule,” under which
probable cause may be established by information collectively known to the
police. Karr v. Smith, 774 F.2d 1029, 1031 (10th Cir. 1985). As no officer has
admitted relaying information to, or receiving information from, fellow officers
based on personal observation of Fogarty’s behavior, we have no occasion to
apply this rule. Cf. Albright v. Rodriguez, 51 F.3d 1531, 1536-37 (10th Cir.
1995) (holding that officer was entitled to rely on a fellow officer’s personal
observations of the arrestee’s behavior); United States v. Morgan, 936 F.2d 1561,
1569 (10th Cir. 1991) (holding that “reliable” information communicated from a
supervising officer, combined with the arresting officer’s “personal observations
and knowledge,” supported probable cause).

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in Fogarty’s favor, we disagree that his drumming necessarily breached the peace

by contributing to the alleged disruptions. For example, Fogarty denied playing

his drum in an inciting marching cadence. Another witness stated that the police

response, rather than drumming, was inciting the crowd. Finally, if police

announcements were indeed unintelligible due to technical malfunctions,

Fogarty’s drumming would not have breached the peace by preventing the police

from controlling the crowd. Indeed, substantial factual disputes exist as to

whether the protesters were engaging in peaceful, police-sanctioned expression,

or threatening to block interstates and impair public safety. In sum, crediting the

facts found by the district court and those that it likely assumed, we are precluded

from holding that Fogarty’s conduct threatened to incite violence or create

“consternation and alarm” as required by New Mexico law. Florstedt, 419 P.2d at

249.

The defendants’ arguments that the police had probable cause to arrest

Fogarty rest only on characterizations of the protest in general, and not on

evidence of Fogarty’s individual actions. The Fourth Amendment plainly requires

probable cause to arrest Fogarty as an individual, not as a member of a large

basket containing a few bad eggs. In other words, that Fogarty was a participant

in an antiwar protest where some individuals may have broken the law is not

enough to justify his arrest. See NAACP v. Claiborne Hardware Co., 458 U.S.

886, 908 (1982) (“The right to associate does not lose all constitutional protection

- 21 -
merely because some members of the group may have participated in conduct . . .

that itself is not protected.”); Jones v. Parmley, 465 F.3d 46, 59 (2d Cir. 2006)

(holding that officers could not have thought indiscriminate arrests were lawful

when “a few individuals within [a protesting] crowd had violated the law at an

earlier time and then desisted”); Barham v. Ramsey, 434 F.3d 565, 574 (D.C. Cir.

2006) (holding that “[v]ague allegations that ‘demonstrators’ committed offenses

will not compensate” for a failure to show any objective basis for arresting

individual protesters); cf. Mangieri v. Clifton, 29 F.3d 1012, 1017-18 (5th Cir.

1994) (granting qualified immunity to officers who, when responding to a noise

complaint, personally witnessed a protester using a bullhorn at full volume and

observed that these actions had an effect on bystanders).

2

Although we conclude that Fogarty has sufficiently alleged a constitutional

violation, defendants are entitled to qualified immunity unless Fogarty can also

show that the constitutional right they violated was clearly established. Saucier,

533 U.S. at 201. In the context of an unlawful arrest our analysis is simple, for

“[t]he law was and is unambiguous: a government official must have probable

cause to arrest an individual.” Cortez, 478 F.3d at 1117 (citing Tennessee v.

Garner, 471 U.S. 1, 7 (1985)). Equally unambiguous are the New Mexico cases

resolving the scope of the disorderly conduct statute. Under Fogarty’s version of

events—that he was peacefully drumming a samba at a reasonable volume—well-

- 22 -
settled constitutional and state-law precedent would have put reasonable officers

on notice that they lacked probable cause to effectuate an arrest. See Medina v.

City & County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992) (holding that a

right is clearly established if there is “a Supreme Court or Tenth Circuit decision

on point, or the clearly established weight of authority from other courts” holds

such a right to exist). Defendants are therefore not entitled to qualified immunity

on Fogarty’s claim of unlawful arrest at this stage of the litigation.

We underscore that these conclusions regarding probable cause are

compelled by our constrained jurisdiction and our view of the facts in the light

most favorable to Fogarty. Most of the deposed officers denied even witnessing

Fogarty’s arrest, and none admitted to physically arresting him. Their depositions

therefore contain little that might contradict Fogarty’s account of his own

behavior. If defendants demonstrate at trial that the arresting officers had

objective reason, even if mistaken, for believing that Fogarty’s drumming tended

to disturb the peace by increasing the potential for violence or public alarm as

defined by the New Mexico courts, they may well be entitled to qualified

immunity. But on the record before us, we cannot at this juncture reach such a

conclusion as a matter of law.

B

Next, defendants challenge the district court’s denial of qualified immunity

on Fogarty’s excessive use of force claim. In the court below, Fogarty claimed

- 23 -
that APD officers used excessive force in three ways: by forcibly dragging him

across Central Avenue during his arrest while hyperflexing his wrist, by exposing

him to tear gas, and by shooting him with a pepper ball or some other type of

projectile. As with Fogarty’s unlawful arrest claim, we review only whether the

facts viewed in the light most favorable to Fogarty entitle the defendants to

qualified immunity as a matter of law. 11

1

Like Fogarty’s unlawful arrest claim, his excessive force claim is grounded

in the Fourth Amendment. Our inquiry on this claim focuses on whether the force

used by the APD was reasonable under the facts and circumstances presented.

See Graham v. Conner, 490 U.S. 386, 396 (1989). In particular, we must pay

“careful attention” to factors such as “the severity of the crime at issue, whether

the suspect poses an immediate threat to the safety of the officers and others, and

whether he is actively resisting arrest or attempting to evade arrest by flight.” Id.

We also consider whether an officer’s own “reckless or deliberate conduct” in

connection with the arrest contributed to the need to use the force employed.

11
The dissent contends that the defendant officers, except for John
Gonzales, have waived their legal challenge to the excessive force claim.
Fogarty, however, regarded these arguments sufficiently presented by the
plaintiffs’ briefs to address them extensively in his response. Cf. Stump v. Gates,
211 F.3d 527, 533 (10th Cir. 2000) (declining to reach issue when “we did not
have the benefit of the appellee’s response”). The defendants, in turn, expounded
on these legal arguments in more detail in their consolidated reply brief. This is
therefore not a clear-cut case of waiver, and we find the defendants’ excessive
force arguments adequately raised and developed to require our review.

- 24 -
Jiron v. City of Lakewood, 392 F.3d 410, 415 (10th Cir. 2004); Medina v. Cram,

252 F.3d 1124, 1132 (10th Cir. 2001).

Our analysis is again an objective one: “The ‘reasonableness’ of a

particular use of force must be judged from the perspective of a reasonable officer

on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S.

at 396. Although we have concluded that Fogarty’s arrest was not supported by

probable cause, this does not mean that the force used to arrest him was

automatically excessive, as the two inquiries are entirely independent. See

Cortez, 478 F.3d at 1126-27 (“[I]n a case where police effect an arrest without

probable cause . . . but use no more force than would have been reasonably

necessary if the arrest or the detention were warranted, the plaintiff has a claim

for unlawful arrest or detention but not an additional claim for excessive force.”).

First, we consider the severity of the crime at issue. As discussed,

defendants contend that Fogarty engaged in disorderly conduct. Disorderly

conduct, under New Mexico law, is only a petty misdemeanor, the least serious of

the three classes of state criminal offenses. See N.M. Stat. Ann. §§ 30-20-1, -1-6

(defining felonies, misdemeanors, and petty misdemeanors). Assuming for the

purposes of our independent excessive force analysis that Fogarty had indeed

committed disorderly conduct, his infraction would be among the least severe

crimes contemplated by New Mexico law, and the amount of force used should

have been reduced accordingly. See Casey v. City of Fed. Heights, 509 F.3d

- 25 -
1278, 1281 (10th Cir. 2007) (holding that when a plaintiff is suspected of

committing a minor misdemeanor, this fact “reduces the level of force that was

reasonable [for an officer] to use”).

Second, viewing the evidence presented to the district court in the light

most favorable to Fogarty, we find no suggestion that he posed an immediate

threat to the safety of the officers or others. At the point when the officers used

force against him, Fogarty was kneeling on the steps of the bookstore. He was

unarmed and had been drumming intermittently and peacefully. Even if his

behavior played a role in inciting the crowd to remain in the middle of Central

Avenue, which is contrary to Fogarty’s version of events, it remains far from

clear that the protesters presented any immediate threat to the officers or public

safety. In denying qualified immunity, the district court had before it testimony

that the officers’ main priorities in dispersing the protesters were reopening the

street to traffic and avoiding disruption to local businesses, not quelling an

immediate threat of violence. Under the district court’s view of the evidence,

Fogarty’s behavior presented no immediate threat to anyone’s physical safety.

Accordingly, this factor also suggests that the force used against Fogarty was

unreasonable.

Third, Fogarty was neither actively resisting arrest nor attempting to evade

arrest by flight. After reviewing the record, the district court found that “[n]o

police officer notified [Fogarty] that he was under arrest, nor did they ask him to

- 26 -
come along peacefully.” It concluded that “[t]here is no indication, even by

Defendants’ version, that Plaintiff ever resisted arrest or attempted to evade

arrest, which would have called for the use of a higher degree of force.” This

factor therefore also tilts the scale in the direction of unreasonable force. See

Casey, 509 F.3d at 1282.

Finally, Fogarty presented evidence indicating that the police may have

contributed to the need to use force. Fogarty stated that APD’s decision to block

off Central Avenue led him to believe that police were allowing protesters to

march in the streets. In addition, one witness stated that the protest was peaceful

until police “enraged” the crowd by initiating “unnecessary” arrests. Although

perhaps less persuasive than the other three factors, these contentions, if true,

would also suggest that APD used more force than reasonable.

On the other side of the reasonableness scale, the amount of force used by

police against Fogarty was considerable. Fogarty alleges that he was hit with a

rifle-fired projectile while standing on UNM property. He then claims that four

to five officers grabbed him, thrust him to the ground, and forcibly escorted him

through a cloud of tear gas. When he began having difficulty breathing, officers

allegedly used “an incredible amount of force” to put his wrist into a painful

hyperflexion position. According to Fogarty, this use of force lasted from three

to five minutes and resulted in a torn tendon. Fogarty also testified that APD’s

use of chemicals had a significant effect on him. Because the tear gas prompted

- 27 -
an acute asthma attack, Fogarty, a medical doctor, stated that he “thought [he]

was going to die.” Given that each of the Graham factors balances in Fogarty’s

favor, we hold that this level of force was unreasonable under the circumstances

Fogarty recounts.

2

Fogarty must also show that defendants’ use of force violated clearly

established law. Saucier, 533 U.S. at 201. “Ordinarily, in order for the law to be

clearly established, there must be a Supreme Court or Tenth Circuit decision on

point, or the clearly established weight of authority from other courts must have

found the law to be as the plaintiff maintains.” Medina, 960 F.2d at 1498. “The

difficult part of this inquiry is identifying the level of generality at which the

constitutional right must be ‘clearly established.’” Casey, 509 F.3d at 1284.

Although the general factors outlined in Graham are insufficiently specific

to render every novel use of excessive force unreasonable, “[w]e cannot find

qualified immunity wherever we have a new fact pattern.” Id. Thus, our circuit

uses a sliding scale to determine when law is clearly established. Id. Under this

approach, “[t]he more obviously egregious the conduct in light of prevailing

constitutional principles, the less specificity is required from prior case law to

clearly establish the violation.” Id. (quoting Pierce v. Gilchrist, 359 F.3d 1279,

1298 (10th Cir. 2004)). Relevant here, “Graham establishes that force is least

- 28 -
justified against nonviolent misdemeanants who do not flee or actively resist

arrest.” Casey, 509 F.3d at 1285.

With respect to the use of pepper balls and tear gas, we acknowledge that

our precedential opinions have not directly addressed the Fourth Amendment

implications of what defendants call “less lethal” munitions. Nevertheless, a

reasonable officer would have been on notice that the Graham inquiry applies to

the use of these methods just as with any other type of pain-inflicting compliance

technique. We find it persuasive that, in prior cases, we have assumed that the

use of mace and pepper spray could constitute excessive force. See DeSpain v.

Uphoff, 264 F.3d 965, 978 (10th Cir. 2001) (“[P]epper spray . . . implicates the

excessive use of force” in the Eighth Amendment context.); Martinez v. N.M.

Dep’t of Pub. Safety, 47 Fed. Appx. 513, 516-17 (10th Cir. 2002) (unpublished)

(citing LaLonde v. County of Riverside, 204 F.3d 947, 961 (9th Cir. 2000))

(holding that a reasonable officer would have known that the use of mace against

an arrestee who “posed no threat” and “was no risk of flight” amounted to

excessive force); accord Vinyard v. Wilson, 311 F.3d 1340, 1355 (11th Cir.

2002); Headwaters Forest Def. v. County of Humboldt, 276 F.3d 1125, 1130 (9th

Cir. 2002); Park v. Shiflett, 250 F.3d 843, 853 (4th Cir. 2001). Considering that

under Fogarty’s version of events each of the Graham factors lines up in his

favor, this case is not so close that our precedents would fail to portend the

constitutional unreasonableness of defendants’ alleged actions.

- 29 -
 We likewise conclude that it would be apparent to a reasonable officer that

the use of force adequate to tear a tendon is unreasonable against a fully

restrained arrestee. See Smith v. Mattox, 127 F.3d 1416, 1419-20 (11th Cir.

1997) (denying qualified immunity when an officer broke an arrestee’s arm in the

course of restraining him, even in the absence of prior circuit precedent arising

under the same facts). Viewing the facts in the light most favorable to Fogarty,

we conclude that defendants cannot avail themselves of qualified immunity at this

stage of the litigation.

IV

We next address defendants’ arguments regarding their personal liability

for alleged constitutional violations under § 1983. Defendants raise two related,

but distinct, lines of argument. First, several defendants argue that, contrary to

the district court’s view of the evidence in the light most favorable to Fogarty,

they simply were not present for the alleged use of excessive force. These are

fact-based arguments that we cannot reach on interlocutory appeal. Citing

relevant case law, however, defendants also argue that, even under the facts

alleged by Fogarty, clearly established law precludes § 1983 liability. Although

their specific arguments differ, a common principle governs each: “Individual

liability under § 1983 must be based on personal involvement in the alleged

constitutional violation.” Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997).

Personal involvement is not limited solely to situations where a defendant violates

- 30 -
a plaintiff’s rights by physically placing hands on him. We have recognized at

least two other ways in which a plaintiff may show a defendant’s involvement.

An officer who fails to intervene to prevent a fellow officer’s excessive use of

force may be liable under § 1983. Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir.

1996). This duty was clearly established law at the time of Fogarty’s arrest. See

id.

In addition, supervisors may be liable for a subordinate’s constitutional

deprivations under certain circumstances. As a general matter, § 1983 does not

recognize a concept of strict supervisor liability; the defendant’s role must be

more than one of abstract authority over individuals who actually committed a

constitutional violation. Jenkins v. Wood, 81 F.3d 988, 994-95 (10th Cir. 1996).

Yet in situations where an “‘affirmative link’ exists between the constitutional

deprivation and either the supervisor’s personal participation, his exercise of

control or direction, or his failure to supervise,” the supervisor may be personally

liable. Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993).

A

We apply these principles to John Gonzales’ appeal. John Gonzales argues

that he cannot be held liable for Fogarty’s unlawful arrest or the excessive use of

force because he did not participate in either constitutional violation. In denying

summary judgment to John Gonzales, the district court found that: (1) John

Gonzales was directly involved in Fogarty’s arrest by virtue of giving the arrest

- 31 -
order, (2) There were disputed issues of material fact regarding his opportunity to

intervene in the excessive use of force, and (3) John Gonzales exercised

supervision and control over the arresting officers.

With regard to John Gonzales’ direct involvement in Fogarty’s arrest, the

district found that John Gonzales either explicitly ordered that the drummers be

arrested, or ordered that their drums be taken and that arrests be made as a last

resort. Under either set of facts, the district court reasoned that Fogarty was

arrested as a result of John Gonzales’ direct order. Accordingly, if John Gonzales

indeed lacked probable cause to justify the arrests, his order would be

unconstitutional and would create liability under § 1983. See Barham, 434 F.3d

at 577-78 (denying qualified immunity to a police chief in an interlocutory appeal

when the extent of his involvement in a mass arrest was disputed by the parties).

As for the excessive force claim, the district court considered both John

Gonzales’ involvement with the general deployment of tear gas and projectiles,

and his role in Fogarty’s arrest. With regard to the former, it found that John

Gonzales gave orders to subordinates, moved through the crowd supervising the

event, and personally ordered the use of the tear gas that caused some of

Fogarty’s injuries. These facts, if borne out at trial, show sufficient direct

responsibility for the use of force to deny qualified immunity at this stage.

The district court also found John Gonzales potentially liable for the force

used during Fogarty’s arrest, recounting Fogarty’s statement that an officer who

- 32 -
was not wearing a gas mask or holding a shield witnessed his arrest. This

description comported with John Gonzales’ characterization of his own attire. In

the district court’s view, this was sufficient to support an inference that John

Gonzales may have witnessed Fogarty’s arrest without stopping the excessive use

of force.

Bound by the district court’s reading of the evidence, we turn to the legal

question of John Gonzales’ indirect liability. Under this circuit’s clearly

established law, if John Gonzales were indeed present at Fogarty’s arrest with an

opportunity to prevent the excessive use of force, he would have had a duty to

intervene. See Mick, 76 F.3d at 1136. In Jenkins, 81 F.3d at 995, we found that

the defendant bore no personal liability for alleged Fourth Amendment violations

because he arrived on the scene after the alleged constitutional deprivations had

occurred, and he assisted in remedying the situation once he arrived. 12 By

contrast, Fogarty contends that John Gonzales set the wheels of the alleged

constitutional deprivation in motion and that he may have stood by and witnessed

Fogarty’s arrest and resultant injuries. We thus cannot hold at this stage in the

litigation that John Gonzales is entitled to qualified immunity on Fogarty’s claim

of excessive force.

12
Jenkins declined to address whether either defendant was liable as a
supervisor, deeming these arguments waived. Id. at 996.

- 33 -
 Finally, the district court found supervisory liability for John Gonzales. It

reasoned that as the incident commander who planned the APD response to the

protest, ordered certain arrests, and controlled the deployment of chemical

munitions and less lethal projectiles, John Gonzales could be held liable under

§ 1983 as a supervisor. John Gonzales counters that he took extreme measures to

limit the use of force during the protest and refused a gas mask or other protection

so that he might act as a “barometer” for the intensity of the gas. At trial, these

claims may bolster his assertions that he used only reasonable force, but they also

establish his detailed involvement with the mechanics of APD’s reaction to the

protest.

Viewing the district court’s findings in the light most favorable to Fogarty,

we agree with its legal conclusion that an “affirmative link” exists between John

Gonzales’ actions and the alleged constitutional deprivations. At the very least,

under Fogarty’s version of the facts, John Gonzales “set[] in motion a series of

acts by others . . . , which he knew or reasonably should have known, would

cause others to inflict the constitutional injury.” Motley v. Parks, 383 F.3d 1058,

1067 (9th Cir. 2004) (quotation omitted). We thus affirm the district court’s

denial of qualified immunity to John Gonzales.

B

Fogarty alleged that Hill and Keith failed to intervene in the arrest and

excessive use of force, and that they were liable as supervisors. For both

- 34 -
defendants, the district court denied summary judgment, reasoning that Fogarty

had presented enough evidence to proceed to trial on a theory of supervisory

liability. In addition, it found that Hill could be directly liable for failing to

intervene in the excessive use of force. On appeal, Hill and Keith contend that

the evidence presented to the district court, even viewed in the light most

favorable to Fogarty, does not meet the legal standards we have articulated above

for indirect personal § 1983 liability.

1

The district court found that Hill “supervised the arrest and was present

when the group of line officers were dispatched to carry out the arrest,” and

concluded that this fact raised an inference of a duty to intervene. Hill argues

that a police officer must have a “realistic opportunity” to prevent an attack in

order to incur § 1983 liability. O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir.

1988) (holding that defendant had no duty to intervene when “three blows were

struck in such rapid succession that [the defendant] had no realistic opportunity to

attempt to prevent them”); see also Lusby v. T.G. & Y. Stores, Inc., 749 F.2d

1423, 1433 (10th Cir 1984), vacated on other grounds, 474 U.S. 805 (1985)

(reasoning that defendant officers were potentially liable when they “could have

prevented or stopped” a fellow officer’s assault). Yet Fogarty described the arrest

as lasting between three and five minutes. This, coupled with the district court’s

finding that Hill was present for the arrest, supports a conclusion that Hill had the

- 35 -
opportunity to prevent Fogarty’s injuries. If a jury were to credit Fogarty’s

version of events, he could indeed establish Hill’s failure to intervene. The

district court was correct to deny qualified immunity.

We also conclude that these same facts, if true, could support an

“affirmative link” between Hill and Fogarty’s arrest such that Hill could be

accountable under a theory of supervisory liability. In addition, the district court

found that Hill gave direct orders to arrest Fogarty. In light of these factual

findings, we conclude that Fogarty has sufficiently indicated Hill’s “exercise of

control or direction” over his arrest to survive summary judgment.

Defendants also argue that Fogarty did not allege a separate “failure to

intervene” count in his second amended complaint. Accordingly, they contend

that the district court erred in denying summary judgment on this basis. We

disagree. Heightened pleading is not required in § 1983 cases, rather the

pleadings must “make clear the ‘grounds’ on which the plaintiff is entitled to

relief.” Robbins v. Oklahoma, ___ F.3d ___, 2008 WL 747132, at *4 (10th Cir.

Mar. 21, 2008); see also Currier v. Doran, 242 F.3d 905, 916-17 (10th Cir. 2001).

Fogarty has met this requirement. He clearly alleged that “Hill stood by as

another APD officer shoved a knee into [Fogarty’s] back” and that all defendants,

with the exception of Keith, “used or permitted” physical force in the course of

the arrest (emphasis added). Fogarty’s allegations were therefore sufficiently

- 36 -
clear to put defendants on notice that the alleged constitutional violations were

predicated, in part, on their alleged failure to intervene.

2

In reviewing Fogarty’s claims against Keith, the district court

acknowledged that “[t]he undisputed facts demonstrate no connection between

Defendant Keith and Plaintiff’s claims of unlawful arrest [or] excessive force,”

and thus he was entitled to summary judgment on these counts. It did find,

however, that Keith was “in the vicinity of [Fogarty’s] arrest” and was assigned

to supervise ERT officers. Based on these facts, as well as “the persistent

obfuscation of the identities of the arresting officers,” the district court held that

Keith was not entitled to summary judgment on Fogarty’s § 1983 supervisory

liability claim.

We give full credit to the district court’s conclusions regarding the

sufficiency of Fogarty’s evidence that Keith may have been in the general area of

the arrest. We cannot agree, however, with the district court’s legal conclusion.

Fogarty presented no evidence that Keith ordered, directed, or even knew of

either Fogarty’s arrest or the deployment of a nonlethal projectile against him, nor

did the district court make any factual inferences that would present a legal basis

for Keith’s liability. Further, it is undisputed that Keith did not deploy any tear

gas. We thus cannot discern an “affirmative link” between Keith’s alleged

actions and Fogarty’s arrest. Absent allegations “of personal direction or of

- 37 -
actual knowledge and acquiescence,” Keith is entitled, as a matter of law, to

qualified immunity on all of Fogarty’s § 1983 claims. Johnson v. Martin, 195

F.3d 1208, 1219 (10th Cir. 1999) (quotation omitted).

C

Finally, we review the district court’s denial of qualified immunity to

Hubbard and Nick Gonzales, who were members of a SWAT team located near

the bookstore during the protest. Both officers argue that the district court should

have granted summary judgment in their favor on Fogarty’s unlawful arrest and

excessive use of force claims because they played no role in arresting Fogarty.

Although both officers denied any involvement in Fogarty’s arrest, the

district court found that Fogarty had presented evidence sufficient to create a

genuine issue of fact on this point. Based on Hill’s testimony that he recalled

both Nick Gonzales and Hubbard as members of the team charged with arresting

the drummers, the district court concluded that there was sufficient circumstantial

evidence of actual personal involvement to preclude summary judgment. This

being an interlocutory appeal, we cannot second guess the district court’s factual

determinations regarding Nick Gonzales’ and Hill’s potential involvement in the

unlawful arrest and excessive use of force. See Walker, 451 F.3d at 1155.

Nick Gonzales and Hubbard next attempt to frame the district court’s

disposition as legal error, contending that it engaged in impermissible credibility

determinations regarding their testimony. On summary judgment, a district court

- 38 -
may not weigh the credibility of the witnesses. See Seamons v. Snow, 206 F.3d

1021, 1026 (10th Cir. 2000). Practically speaking, this means that the court may

not grant summary judgment based on its own perception that one witness is more

credible than another; these determinations must be left for the jury. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). We think it clear that the court

below did not make a credibility determination. Instead, it found a material

question regarding the officer’s credibility. By denying summary judgment, it

appropriately left the resolution of that question to a jury.

V

For the reasons explained, we AFFIRM the district court’s denial of

summary judgment to John Gonzales, Nick Gonzales, Steven Hill, and Dave

Hubbard, REVERSE the denial of summary judgment to Donald Keith, and

DISMISS defendants’ state-law appeals for lack of jurisdiction.

- 39 -
Fogarty v. Gallegos, 06-2238 & 06-2279

EBEL, Circuit Judge, Dissenting.

I must respectfully dissent from the majority opinion for several reasons.

First, I believe that the district court erred when it denied the defendants summary

judgment on Fogarty’s Fourth Amendment unlawful arrest claim. The record

demonstrates that the defendants were not unreasonably mistaken that probable

cause supported the arrest. Second, I believe that Fogarty’s state law false arrest

claim is inextricably intertwined with his Fourth Amendment unlawful arrest

claim. Therefore, I believe we should exercise pendent jurisdiction and reverse

the district court’s denial of summary judgment for Captain Gonzales on this

claim. Third, I do not believe that we have appellate jurisdiction over the

officers’ appeal of the denial of summary judgment on Fogarty’s Fourth

Amendment excessive force claim. The officers solely argue that there is no

evidence in the record to support the district court’s decision to deny summary

judgment. We lack jurisdiction to review a dispute with the district court’s

determination that a genuine issue of material fact precludes summary judgment.

Finally, for the same reason, I believe we lack appellate jurisdiction over the

defendants’ appeal regarding the denial of summary judgment for Fogarty’s

supervisory liability claim.
I. Unlawful Arrest

The majority, in rejecting the defendants’ argument that probable cause

supported Fogarty’s arrest, relies on its interpretation of the New Mexico

disorderly conduct statute and related precedent. My reading of that precedent,

however, dictates a different result. As part of its probable cause analysis, the

majority interprets § 30-20-1 narrowly and thus concludes that the statute

prohibits only conduct that is likely “to cause violence or other serious public

disruption.” Maj. Op. at 19. The majority reaches this result, in large part,

because I believe it overlooks a fundamental legal issue in the case law.

The New Mexico Supreme Court has explained that § 30-20-1 prohibits

conduct that “tends to disturb the peace . . . by causing consternation and alarm.”

State v. Doe, 583 P.2d 464, 466 (N.M. 1978) (emphasis added). The New Mexico

Supreme Court has not addressed § 30-20-1 since Doe; however, in State v. Salas,

the New Mexico Court of Appeals held that conduct falling well short of a

“serious public disruption” breaches the peace. 986 P.2d 482, 487 (N.M. Ct. App.

1999). In Salas, the court held that the defendant’s mere use of profanity

“tend[ed] to disturb the peace” because the defendant’s comments appeared to

offend one woman standing nearby. Id. Thus, the court held that probable cause

justified the arrest. See id. (“[T]he only requirement is that Defendant’s actions

disturb the public peace. A reasonable officer could well conclude, while at the

scene of this occurrence, that the woman walked against the wall avoiding

-2-
Defendant because of consternation and alerted [the officer] because . . .

Defendant’s behavior was disturb[ing] the peace and quiet of the community.”

(internal quotation marks and citation omitted) (quoting Doe, 583 P.2d at 466)).

Salas demonstrates that the majority’s interpretation of § 30-20-1 is unduly

narrow. The majority, however, attempts to avoid Salas by contending that the

court of appeals narrowly construed that opinion in a more recent case. See State

v. Hawkins, 991 P.2d 989, 993 (N.M. Ct. App. 1999). I believe the majority’s

conclusion overlooks a fundamental legal issue relevant to the holdings in both

Salas and Hawkins: the fact that New Mexico “holds police officers to a higher

standard of tolerance for abuse or offensive language.” Hawkins, 991 P.2d at

992.

In Hawkins, the evidence revealed that the only bystanders that possibly

could have been disturbed by the defendant’s “loud or offensive” remarks were

the two police officers at the scene. Id. Accordingly, the court, relying on the

higher standard of tolerance New Mexico requires of police officers, held that the

effect of the defendant’s remarks on the officers was insufficient to establish

probable cause. Id. In contrast, the record in Salas demonstrated that the

defendant’s conduct disturbed a non-police bystander and that the defendant

approached the officer in an aggressive manner, with his fists clenched. Salas,

986 P.2d at 488. Although the Hawkins court focused on the latter factor, which

distinguished the factual records of the two cases, that focus does not alter the

-3-
fact that the court in Salas expressly based its holding solely on the effect of the

defendant’s conduct on a non-police bystander. 1 See id. at 488–89 (“Defendant

was not arrested for his actions toward [the officer], other people were present,

and the district court found that Defendant disturbed a member of the public.

[The officer] had probable cause to arrest Defendant for disorderly conduct.”

(emphasis added)). Thus, the Salas court’s broad interpretation of § 30-20-1

remains binding New Mexico law.

Based on this reading of New Mexico precedent, I believe that the

defendants had probable cause for two reasons. First, § 30-20-1 only requires

conduct that “tends to disturb the peace.” N.M. Stat. Ann. § 30-20-1 (emphasis

added). Second, our precedent dictates that police officers are entitled to

qualified immunity even if they are reasonably mistaken about the presence of

probable cause. See Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1256 (10th Cir.

1
The majority also asserts that Hawkins narrowly construed Salas by citing
an Alabama case for the proposition that “[an] expression was not disorderly
when it ‘did not contain a threat and [was] not likely to cause a violent
response.’” Maj. Op. at 19 n.9 (quoting Hawkins, 991 P.2d at 993). By
selectively quoting this passage, the majority’s assertion misconstrues the court’s
language in Hawkins. The complete passage explains that the Alabama court held
that a defendant’s protests regarding an arrest did not support a conviction for
disorderly conduct because the comments “did not contain a threat and were not
likely to cause a violent response by the police officer to whom they were
addressed, especially in view of probable training the officer received for dealing
with similar situations.” Hawkins, 991 P.2d at 993 (emphasis added). The
complete language of this passage further underscores the factual distinctions
between Salas and Hawkins and thus does not demonstrate that the Hawkins court
was construing Salas narrowly.

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1998) (“Even law enforcement officials who reasonably but mistakenly conclude

that probable cause is present are entitled to immunity.” (internal quotation marks

omitted) (quoting Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995)).

Although we construe the record in the light most favorable to Fogarty, we

evaluate whether that record supports probable cause based on the facts and

circumstances “as they would have appeared to prudent, cautious and trained

police officers.” United States v. Davis, 197 F.3d 1048, 1051 (10th Cir. 1999).

The combined effect of these two factors entitles the defendants to qualified

immunity. The record illustrates that Fogarty participated in a drum circle during

the protest and that the defendants perceived the drums to be one source of

interference with their ability to communicate with the crowd of protestors. Thus,

it was reasonable for the defendants to conclude that, from their perspective, the

drumming was unreasonably loud and therefore tended to disturb the peace. The

defendants therefore reasonably determined they had probable cause to arrest

Fogarty, and accordingly, the district court erred by denying the defendants

qualified immunity for the Fourth Amendment unlawful arrest claim.

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II. Pendent Jurisdiction

The question of pendent jurisdiction over Fogarty’s state law false arrest

claim relates to the unlawful arrest analysis. We should exercise pendent

jurisdiction over Captain Gonzales’ appeal on this issue because the Fourth

Amendment unlawful arrest and the state law false arrest claims are “inextricably

intertwined.” 2 Swint v. Chambers County Comm’n, 514 U.S. 35, 51 (1995).

Based on this exercise of our pendent jurisdiction and the determination that the

defendants possessed probable cause, I believe the district court should have

granted Captain Gonzales summary judgment on this state law claim.

III. Excessive Force

In contrast to the majority opinion, I do not believe that we have appellate

jurisdiction to consider the officers’ argument on appeal for this claim. 3 The

district court concluded that summary judgment was inappropriate because

disputed issues of material fact existed regarding the officers’ involvement with

2
The officers waived this issue by failing to raise it in their initial brief.
See United States v. Martinez, ___ F.3d ___, 2008 WL 554812, at *3 n.2 (10th
Cir. Mar. 3, 2008). Accordingly, I agree with the majority’s decision to decline
to exercise pendent jurisdiction over this claim against the officers.
3
I agree with the majority opinion, however, that we have appellate
jurisdiction to consider Captain Gonzales’ argument regarding whether the use of
nonlethal munitions constitutes excessive force because Captain Gonzales raised
that legal argument in his opening brief. I also agree that Sergeant Hill raised an
abstract legal argument regarding Fogarty’s allegation of a failure to intervene
during the use of excessive force. Accordingly, we have appellate jurisdiction to
consider that issue.

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the use of force. On appeal, the officers contend only that the district court erred

because there was no evidence in the record to support Fogarty’s allegations of

excessive force. 4

We cannot exercise appellate jurisdiction over an interlocutory appeal if the

defendant only contests the district court’s determination that a dispute of

material facts remains. See Walker v. City of Orem, 451 F.3d 1139, 1154 (10th

Cir. 2006) (“A defendant may not immediately appeal a district court’s order

denying qualified immunity, however, merely to dispute the district court’s

conclusions that plaintiff’s claims are supported by sufficient evidence in the

record or that disputed issues of material fact exist which preclude summary

judgment.”). The officers do not contend that the district court misapplied the

law. Instead, they contest only the district court’s conclusion that the presence of

disputed material facts precludes summary judgment. Therefore, pursuant to

Walker, we may not exercise appellant jurisdiction and should dismiss this aspect

of the appeal rather than affirm the district court’s decision.

4
Although the officers raise an abstract legal argument in their reply
brief—they contend that the amount of force used was reasonable—we generally
decline to consider arguments raised for the first time in a reply brief, and I see
no reason to vary from that practice here. The precise amount of force
administered, and by whom, remain factual issues still in controversy. Martinez,
2008 WL 554812, at *3 n.2.

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IV. Supervisory Liability

The defendants contend that the district court erred by denying them

qualified immunity because there is “no evidence” linking the supervisory

officers to the use of excessive force. In contrast, the district court concluded

that summary judgment was not appropriate because genuine factual issues

remained. As noted above, we may not consider the defendants’ argument that

the district court erred because no genuine factual issues exist. Therefore, we

must also dismiss this aspect of the appeal.

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