Shimomura v. Carlson

FILED
United States Court of
PUBLISH Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 29, 2015
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
_________________________________ Clerk of Court

TSUTOMU SHIMOMURA,

Plaintiff - Appellant,

v. No. 14-1418

KENDRA CARLSON, an agent of
the Transportation Security
Administration, in her individual
capacity; WADE DAVIS, a Denver
Police Department officer, in his
individual capacity,

Defendants - Appellees,

and

TERRY CATES, an agent of the
Transportation Security
Administration, in her individual
capacity; PATTI ZELLER, an agent
of the Transportation Security
Administration, in her individual
capacity,

Defendants.
_________________________________

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:13-CV-00462-RBJ-MJW)
_________________________________

Ty Gee, Haddon, (Laura G. Kastetter, with him on the briefs) Haddon,
Morgan, and Foreman, P.C., Denver, Colorado, for Plaintiff-Appellant.
Paul Farley, Assistant United States Attorney, (John F. Walsh, United
States Attorney, with him on the brief) Office of the United States
Attorney, Denver, Colorado, for Kendra Carlson, Defendant-Appellee.

Andrew J. Carafelli, Pryor Johnson Carney Karr Nixon, P.C., Denver,
Colorado, for Wade Davis, Defendant-Appellee.
_________________________________

Before TYMKOVICH, Chief Judge, MURPHY, and BACHARACH,
Circuit Judges.
_________________________________

BACHARACH, Circuit Judge.
_________________________________

Mr. Tsutomu Shimomura claims that an officer with the Denver

Police Department (Wade Davis) and an agent with the Transportation

Security Administration (Kendra Carlson) made an arrest without probable

cause and conspired to fabricate grounds for the arrest. For these claims,

Mr. Shimomura invoked 42 U.S.C. § 1983 and Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),

alleging that Officer Davis and Agent Carlson violated the Fourth, Fifth,

and Fourteenth Amendments. 1 On the Fourth Amendment claims, the

district court granted two motions: (1) Officer Davis’s motion for summary

judgment based on qualified immunity and (2) Agent Carlson’s motion to

dismiss based on failure to state a valid claim. On the causes of action

involving the Fifth and Fourteenth Amendments, the court granted the

1
In the complaint, Mr. Shimomura also invoked the First Amendment.
But the First Amendment claim is not involved in this appeal.

2
defendants’ motions to dismiss for failure to state a valid claim. Mr.

Shimomura appeals; to decide his appeal, we address four issues:

1. Did Officer Davis have qualified immunity (arguable
probable cause) for the arrest? Officer Davis arrested Mr.
Shimomura for assault after seeing him push his roller bag
toward Agent Carlson. Mr. Shimomura contends that Officer
Davis lacked qualified immunity in determining that probable
cause existed. Thus, we must decide whether Officer Davis
enjoys qualified immunity.

We conclude he does. Even if probable cause had been absent,
Officer Davis would enjoy qualified immunity if probable
cause had been at least arguable. In our view, probable cause
was arguable because Officer Davis saw Mr. Shimomura push
his roller bag toward Agent Carlson, observed her reaction by
trying to avoid contact, and watched Mr. Shimomura move
rapidly away. These observations could reasonably lead Officer
Davis to believe there was probable cause involving an assault
under a Denver city ordinance. Thus, Officer Davis enjoys
qualified immunity on the claim of unlawful arrest.

2. Did Mr. Shimomura plead a plausible claim against Agent
Carlson for fabrication and withholding of evidence to
justify the arrest? Mr. Shimomura claims that Agent Carlson
violated the Fourth Amendment by fabricating evidence and
withholding exculpatory evidence to justify the arrest. On these
claims, we must decide whether the allegations plausibly
implicate Agent Carlson in the decision to arrest Mr.
Shimomura.

We conclude they do not. Agent Carlson’s conduct could not
have caused the arrest because it would have taken place after
the arrest. Accordingly, we conclude that Agent Carlson is
entitled to dismissal of the unlawful arrest claim.

3. Did Mr. Shimomura plead a plausible claim of a conspiracy
preceding the arrest? According to Mr. Shimomura, Officer
Davis and Agent Carlson conspired to violate the Fourth
Amendment by making the arrest without probable cause. We
must decide whether this claim was plausible based on the
factual allegations in the complaint.

3
 In our view, the claim fails under this test because Officer
Davis arrested Mr. Shimomura within seconds of the alleged
assault. Mr. Shimomura has not pleaded facts showing a
plausible opportunity for Officer Davis and Agent Carlson to
conspire in those few seconds.

4. Did Mr. Shimomura plead a plausible claim involving
deprivation of procedural due process? Mr. Shimomura
claims that the false arrest, initiation of false charges, and
conspiracy deprived him of procedural due process under the
Fifth and Fourteenth Amendments. We must decide whether the
allegations in the complaint state a viable claim.

In our view, they do not. The Fourth Amendment—not the Fifth
or Fourteenth Amendment’s protection of procedural due
process—generally governs pre-trial deprivations of liberty.
Because the sole source of protection is the Fourth Amendment,
we uphold dismissal of the claim involving deprivation of
procedural due process.

I. Officer Davis arrested Mr. Shimomura after seeing him push his
roller bag toward Agent Carlson.

In February 2011, Mr. Shimomura was going through security at the

Denver International Airport, trying to catch a flight. At the security

checkpoint, Mr. Shimomura presented his belongings for screening. When

he did, a TSA agent conducted a test on Mr. Shimomura’s medication,

using a sampling strip. Mr. Shimomura was afraid that the test would

contaminate his medication. Based on this fear, Mr. Shimomura asked

about the sterility and toxicity of the sampling strip. The TSA agent’s

response did not satisfy Mr. Shimomura. So he asked for the agent’s

supervisor.

4
 Agent Carlson was the TSA supervisor who responded. She stated

that the sampling strips were sterile for screening purposes. But Mr.

Shimomura remained unsatisfied, and the conversation grew heated while

Officer Davis watched from nearby.

Eventually, Mr. Shimomura was told to leave the screening area. He

complied and began walking away with his roller bag, with Agent Carlson

and Officer Davis following closely behind. After taking a few steps, Mr.

Shimomura stopped, and Officer Davis believed that the roller bag had hit

Agent Carlson. A few seconds later, Officer Davis arrested Mr.

Shimomura. Following Mr. Shimomura’s arrest, Officer Davis, Agent

Carlson, and other TSA agents conferred for approximately 90 minutes.

Officer Davis then served Mr. Shimomura with a summons and complaint,

charging him with assault for pushing his roller bag into Agent Carlson.

See Rev. Mun. Code of Denver § 38-93. After reviewing the evidence, the

prosecutor dismissed the criminal complaint against Mr. Shimomura.

This suit followed.

II. Officer Davis was entitled to qualified immunity on the Fourth
Amendment claim because he had arguable probable cause for the
arrest.

Mr. Shimomura claims that he was arrested without probable cause.

On this claim, the district court granted summary judgment to Officer

Davis based on qualified immunity. This ruling was correct.

5
 A. We engage in de novo review based on our two-part test for
qualified immunity.

We review de novo the district court’s grant of summary judgment.

Christiansen v. City of Tulsa, 332 F.3d 1270, 1278 (10th Cir. 2003). The

court must grant summary judgment “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

We apply this standard against the backdrop of our case law on

qualified immunity. This immunity protects all government employees

except those who are “plainly incompetent or those who knowingly violate

the law.” Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010) (quoting

Malley v. Briggs, 475 U.S. 335, 341 (1986)). To overcome this assertion of

qualified immunity, Mr. Shimomura must show that (1) Officer Davis

violated a federal statute or the U.S. Constitution and (2) the underlying

rights were “clearly established at the time of their alleged violation.” Id.

To decide whether Mr. Shimomura made this showing, we view all

evidence in the light most favorable to him as the nonmoving party. Estate

of B.I.C. v. Gillen, 710 F.3d 1168, 1172 (10th Cir. 2013).

Framed under these standards, “the salient Fourth Amendment

questions presented are (1) whether [Officer Davis] possessed probable

cause to arrest [Mr. Shimomura for assault]; and (2) whether extant clearly

established law in [February 2011] would have placed a reasonable,

6
similarly situated police officer on notice that no probable cause existed.”

Quinn v. Young, 780 F.3d 998, 1007 (10th Cir. 2015) (emphasis in

original).

B. Probable cause was at least arguable based on Officer
Davis’s observation of the events.

For the sake of argument, we can assume that probable cause was

lacking. Even with this assumption, however, Officer Davis would enjoy

qualified immunity if probable cause had been at least “arguable.”

Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012). In our view,

probable cause would have been at least arguable.

To determine whether probable cause was arguable, we must begin

with the standard for “probable cause.” Under this standard, probable cause

would exist if Officer Davis had reasonably trustworthy information that

would lead a prudent person to believe that Mr. Shimomura had committed

an offense. Jones v. City & Cnty. of Denver, 854 F.2d 1206, 1210 (10th

Cir. 1988).

The threshold question involves identification of the alleged offense.

On this question, Officer Davis identified Mr. Shimomura’s conduct as a

third-degree assault under the Denver Municipal Code. Thus, we must

determine what constituted a third-degree assault in February 2011.

The municipal code defined third-degree assault to include the

intentional or reckless commission of an assault. Rev. Mun. Code of

7
Denver, § 38-93. Rather than define the word “assault,” the municipal code

referred to Colorado law. Under that law, third-degree assault required

“bodily injury.” Colo. Rev. Stat. Ann. § 18-3-204(1)(a) (2011). The term

“bodily injury” referred to physical pain, illness, or any impairment of

physical or mental condition. Colo. Rev. Stat. Ann. § 18-1-901(3)(c)

(2011). This definition was “broadly inclusive” and included physical

injuries even when they might have been considered only “slight.” People

v. Hines, 572 P.2d 467, 470 (Colo. 1977) (“broadly inclusive”); United

States v. Paxton, 422 F.3d 1203, 1206 (10th Cir. 2005) (“slight”).

In applying the municipal ordinance for assault, a reasonable police

officer could have viewed probable cause as arguable. Mr. Shimomura

relies largely on a video of the incident. The parties agree that this video is

accurate, and Officer Davis acknowledged that it was consistent with what

he had seen. 2 But we also note that Officer Davis’s vantage point of the

incident differs from ours as we watch the video. From our vantage point,

we can see that Officer Davis walked behind both Agent Carlson and Mr.

Shimomura. Officer Davis saw the same events from a different angle. See

Appellant’s App’x at 116 (TSA surveillance video at 2:03-2:06). Thus,

when we watch the video, we see the events from in front of Mr.

2
Mr. Shimomura points out that the video does not show the earlier
argument in the TSA screening area, does not contain audio, does not show
Mr. Shimomura’s or Agent Carlson’s face, and Officer Davis is “barely
visible.” But Mr. Shimomura does not contest the accuracy of the video.

8
Shimomura; Officer Davis saw the events more closely from only a few

feet behind Agent Carlson:

Though our vantage point differs from Officer Davis’s, we can

identify at least four facts that Officer Davis would have known:

1. Mr. Shimomura was pulling his roller bag, which was between
Mr. Shimomura and Agent Carlson.

2. Mr. Shimomura stopped and moved his roller bag in Agent
Carlson’s direction.

9
 3. Agent Carlson moved suddenly after the roller bag was pushed
in her direction.

4. Mr. Shimomura walked away more rapidly after he pushed the
roller bag in Agent Carlson’s direction.

Mr. Shimomura suggests we add a fifth undisputed fact: that he and Agent

Carlson had engaged in a heated disagreement.

Based on these five facts, Officer Davis could reasonably believe

that Mr. Shimomura had intentionally or recklessly pushed his roller bag

into Agent Carlson and caused her at least some slight physical injury.

From our vantage point in watching the video, we cannot see the actual

contact between Agent Carlson and the roller bag. But our view of the

contact is impeded by the camera angle. Officer Davis had a different

angle. See Bogie v. Rosenberg, 705 F.3d 603, 611 (7th Cir. 2013) (stating

that “any . . . film shows only one perspective on a scene, so that

additional perspectives, such as eyewitness testimony . . . , might reveal

additional facts that would change the legal analysis”). And from his angle,

Officer Davis had only a momentary opportunity to see what had taken

place. (We have the luxury of watching the video repeatedly.) Officer

Davis could then see Mr. Shimomura walking away more quickly after

Agent Carlson had made a sudden movement. In these circumstances, a

reasonable officer could believe that Mr. Shimomura had intentionally or

recklessly caused at least some slight physical injury to Agent Carlson. As

a result, probable cause was at least arguable.

10
 C. Probable cause would have remained arguable
notwithstanding Mr. Shimomura’s explanation for his
quickened pace and challenges to Agent Carlson’s
credibility.

Mr. Shimomura argues that his quickened pace did not suggest guilt,

for he might simply have had to hurry to catch his flight. But probable

cause could have existed even if his conduct might also be interpreted as

innocent. See United States v. Muñoz-Nava, 524 F.3d 1137, 1144 (10th Cir.

2008) (“[S]imply because an activity has an innocent connotation does not

mean that it is excluded from the court’s totality of the circumstances

analysis.”).

Mr. Shimomura also argues that Officer Davis should have

discounted Agent Carlson’s description of the events, giving three reasons:

1. A heated argument had just taken place between Agent Carlson
and Mr. Shimomura.

2. Mr. Shimomura denied pushing his roller bag into Agent
Carlson.

3. Other witnesses did not say that Agent Carlson had been
injured.

But these arguments would not preclude Officer Davis from reasonably

believing that probable cause existed.

Agent Carlson and the other witnesses made their statements after

Mr. Shimomura’s arrest; thus, these statements could not have affected the

decision to arrest. And Officer Davis could see for himself what had taken

place when Mr. Shimomura pushed his roller bag toward Agent Carlson. In

11
observing the incident and Mr. Shimomura accelerating his pace afterward,

Officer Davis could reasonably conclude that Mr. Shimomura had

intentionally or recklessly pushed his roller bag into Agent Carlson to

create at least some slight physical injury.

That push might not have created probable cause for third-degree

assault. But probable cause would have been at least arguable even if (1)

Mr. Shimomura had an innocent explanation for walking away more

quickly and (2) Officer Davis had discounted Agent Carlson’s description

of events.

D. Mr. Shimomura’s characterization of the video recording
does not create a fact issue on arguable probable cause.

Mr. Shimomura argues that Officer Davis is not entitled to qualified

immunity because the video recording is inconsistent with the defendants’

statements regarding the alleged assault. According to Mr. Shimomura, the

video recording shows that Mr. Shimomura did not push his roller bag into

Agent Carlson. But from where Officer Davis was positioned, he could

reasonably believe that (1) he had seen Mr. Shimomura push his roller bag

into Agent Carlson and (2) the contact resulted in at least slight physical

injury. 3 The reasonableness of that belief made probable cause at least

3
Mr. Shimomura relies on Baptiste v. J.C. Penney Co., 147 F.3d 1252
(10th Cir. 1998), to oppose qualified immunity for Officer Davis. In
Baptiste, a police officer searched the plaintiff for stolen merchandise after
watching surveillance video of a suspected theft. Baptiste, 147 F.3d at

12
arguable. Thus, even when we consider the evidence in the light most

favorable to Mr. Shimomura, we conclude that Officer Davis is entitled to

qualified immunity on the Fourth Amendment claim of unlawful arrest.

E. Probable cause would have remained arguable
notwithstanding Mr. Shimomura’s allegations in the
complaint and uncertainty about what Officer Davis could
see.

In reaching a contrary conclusion, the partial dissent points to

 Mr. Shimomura’s allegation in the complaint “that [Officer
Davis] could not reasonably perceive evidence of bodily injury,
such as pain” and

 uncertainty about what Officer Davis would have seen from his
angle.

Dissent at 1-2. In our view, these two points do not create a genuine fact-

issue on whether probable cause was at least arguable.

Because the issue involves summary judgment, we must rely on the

summary judgment record rather than Mr. Shimomura’s allegations in the

complaint. In support of the summary judgment motion, Officer Davis

stated under oath that he had seen the roller bag strike Agent Carlson in

the legs. Appellant’s App’x at 112. Mr. Shimomura responded to the

motion, presenting affidavits by himself and Agent Carlson. Agent

1254-55. We concluded that the police officer was not entitled to qualified
immunity because the video did not suggest that a theft had occurred. Id. at
1259-60. Mr. Shimomura’s circumstances are different, for the video
recording does not preclude a reasonable belief that a crime (assault) had
been committed. Thus, Baptiste does not preclude qualified immunity for
Officer Davis.

13
Carlson’s affidavit said that Officer Davis had seen the contact between

the roller bag and Agent Carlson. Id. at 176. Mr. Shimomura’s affidavit

was silent about what Officer Davis could see. Thus, for purposes of

summary judgment, we have undisputed evidence that Officer Davis was

able to see the contact between Agent Carlson and Mr. Shimomura’s roller

bag.

Mr. Shimomura denies that Agent Carlson was physically injured,

and Officer Davis believed there was physical injury. Neither individual

could know for certain, but the sole issue on qualified immunity is whether

Officer Davis could reasonably believe the contact resulted in at least some

slight physical injury to Agent Carlson. Even if Officer Davis’s belief was

wrong, he would have enjoyed qualified immunity as long as his belief was

reasonable. See Stonecipher v. Valles, 759 F.3d 1134, 1141 (10th Cir.)

(“Arguable probable cause is another way of saying the officers’

conclusions rest on an objectively reasonable, even if mistaken, belief that

probable cause exists.”), cert. denied, __ U.S. __, 135 S. Ct. 881 (2014).

In our view, Officer Davis’s belief was reasonable notwithstanding

Mr. Shimomura’s contrary allegations in his complaint. In Mr.

Shimomura’s affidavit, there is nothing casting doubt on Officer Davis’s

belief that Agent Carlson had suffered at least some slight injury. As a

result, Officer Davis would enjoy qualified immunity even if we fully

credit everything in Mr. Shimomura’s affidavit.

14
III. Agent Carlson could not incur liability under the Fourth
Amendment for an unlawful arrest because her alleged
misconduct would have taken place after the arrest.

Mr. Shimomura argues that Agent Carlson violated the Fourth

Amendment by withholding and fabricating evidence to justify the arrest. 4

The district court dismissed this claim, concluding that Mr. Shimomura had

not adequately pleaded causation between Agent Carlson’s conduct and the

arrest. In a later order, the district court declined to vacate this dismissal.

In our view, the court did not err in dismissing the claim against Agent

Carlson.

We review de novo the district court’s grant of a motion to dismiss

for failure to state a claim. Christensen v. Park City Mun. Corp., 554 F.3d

1271, 1275 (10th Cir. 2009). Like the district court, we must determine

whether the complaint contains sufficient facts, accepted as true, to state a

plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A

claim is plausible “when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. In determining whether the claim is plausible, we

view all factual allegations in the light most favorable to Mr. Shimomura

4
Mr. Shimomura also contends that Agent Carlson incurred liability as
an arresting officer because she had “acted in concert with Officer Davis to
effect the illegal arrest lacking in probable cause.” Appellant’s Opening
Br. at 35. This argument is identical to Mr. Shimomura’s argument
underlying his conspiracy claim, which we reject below in Part IV.

15
as the nonmoving party. Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504,

510 (10th Cir. 1998).

As was previously stated, a warrantless arrest without probable cause

violates the Fourth Amendment. Keylon v. City of Albuquerque, 535 F.3d

1210, 1216 (10th Cir. 2008). But nothing in the complaint would plausibly

suggest Agent Carlson’s participation in the arrest.

Mr. Shimomura disagrees, arguing that Agent Carlson caused the

arrest by withholding exculpatory evidence and fabricating a sworn

statement that she had suffered pain from her contact with the roller bag.

Officer Davis allegedly relied on Agent Carlson’s fabricated account.

This contention fails as a matter of law because Agent Carlson’s

alleged misdeeds would have taken place after Officer Davis had already

arrested Mr. Shimomura. Agent Carlson allegedly withheld exculpatory

evidence and fabricated a sworn statement, but only after Officer Davis

had already initiated Mr. Shimomura’s 90-minute detention. That detention

constituted an arrest as a matter of law. See Manzanares v. Higdon, 575

F.3d 1135, 1148 (10th Cir. 2009) 5; see also Appellant’s App’x at 152-53

(Mr. Shimomura’s argument that Officer Davis made an arrest by detaining

5
In Manzanares we stated: “As the Supreme Court has noted, it has
never held a detention of 90 minutes or longer to be anything short of an
arrest. [The defendant] points us to no case, and our independent research
reveals none, construing a detention of 90 minutes or longer as an
investigative detention.” Manzanares, 575 F.3d at 1148 (citation omitted).

16
Mr. Shimomura in the screening area). Thus, Agent Carlson’s misconduct

could not have caused the arrest. In these circumstances, we conclude that

Agent Carlson is entitled to dismissal on the unlawful arrest claim. 6

IV. Mr. Shimomura has not pleaded a plausible conspiracy claim
based on the Fourth Amendment.

Invoking 42 U.S.C. § 1983, Mr. Shimomura also claims that Officer

Davis and Agent Carlson violated the Fourth Amendment by conspiring

(1) to make the arrest without probable cause and (2) to fabricate their

accounts for the initiation of criminal charges. We affirm the district

court’s dismissal of these causes of action for failure to state a claim upon

which relief can be granted. 7

A. We engage in de novo review, considering the plausibility of
the allegations in the complaint.

In reviewing the dismissal, we engage in de novo review. See p. 15,

above. The ultimate question is whether Mr. Shimomura had alleged

specific facts showing (1) an agreement and concerted action between

6
On the cause of action under the Fourth Amendment for unlawful
arrest, Agent Carlson also asserts qualified immunity and unavailability of
a Bivens claim. We need not reach these contentions.
7
On the conspiracy claim, Agent Carlson denies the availability of a
Bivens cause of action and invokes qualified immunity. We need not
address these arguments. The conspiracy claim against Officer Davis and
Agent Carlson was brought under 42 U.S.C. § 1983, not Bivens. Therefore,
we need not reach Agent Carlson’s Bivens argument. And because the
conspiracy claim is facially deficient, we need not decide whether Agent
Carlson is entitled to qualified immunity on this claim.

17
Officer Davis and Agent Carlson and (2) an actual deprivation of

constitutional rights. Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 533

(10th Cir. 1998); Snell v. Tunnell, 920 F.2d 673, 701 (10th Cir. 1990).

Conclusory allegations of conspiracy would not suffice. Tonkovich, 159

F.3d at 534.

B. For the arrest, Mr. Shimomura has not pleaded facts
creating a plausible claim of conspiracy prior to the arrest.

The conspiracy allegations in the complaint involve conduct before

the arrest. Thus, on the claims involving conspiracy to justify the arrest,

we confine our review to the allegations involving conduct preceding the

arrest. These allegations involve six facts 8:

1. Officer Davis saw Agent Carlson communicate with Mr.
Shimomura in an “increasingly hostile and intimidating
manner.” This conduct included Agent Carlson’s refusal to
contact her supervisor or provide her supervisor’s name, angry
threats to remove Mr. Shimomura from the airport, order for
Mr. Shimomura to “get the hell out” of the TSA screening area,
and statement that Mr. Shimomura had accused Agent Carlson
of stealing. Appellant’s App’x at 11-12 ¶¶ 18-20.

2. Officer Davis refused to put Mr. Shimomura in contact with
Agent Carlson’s supervisor. Id. at 12 ¶ 21.

8
In his appeal briefs, Mr. Shimomura alleges that Officer Davis failed
to deescalate the increasingly hostile situation. But we decline to consider
this argument because it had not been raised in district court. See United
Steelworkers of Am. v. Or. Steel Mills, Inc., 322 F.3d 1222, 1228 (10th Cir.
2003) (noting that we will decline to consider factual arguments that had
not been raised in district court).

18
 3. Officer Davis and Agent Carlson threatened to have Mr.
Shimomura arrested if he did not leave the screening area “in
two seconds.” Id.

4. Officer Davis and Agent Carlson “crowded Mr. Shimomura in a
threatening manner” and followed him “closely and
aggressively” as he left the screening area. Id. at 12 ¶¶ 21-22.

5. Officer Davis and Agent Carlson “knew” that (1) Mr.
Shimomura had not committed a crime, (2) there was no
probable cause for Mr. Shimomura’s arrest, (3) Agent Carlson
had been following Mr. Shimomura “too closely,” and
(4) Agent Carlson had become even “further enraged” when she
walked into the roller bag. Id. at 14 ¶ 28.

6. Officer Davis and Agent Carlson believed that Mr. Shimomura
should be criminally punished for questioning TSA screening
procedures. As a result, Officer Davis and Agent Carlson took
“joint and concerted action” to arrest Mr. Shimomura. Id. at 15
¶ 29; Id. at 13 ¶ 24.

For the sake of argument, we can assume that Mr. Shimomura has

pleaded facts reflecting an agreement and concerted action by Officer

Davis and Agent Carlson. But the alleged agreement could not plausibly

have preceded Mr. Shimomura’s arrest. The video reflects the incident,

which unfolded only a few seconds before Officer Davis detained Mr.

Shimomura (constituting an arrest).

It might have been theoretically possible for Officer Davis and Agent

Carlson to conspire to arrest Mr. Shimomura without probable cause.

Perhaps Officer Davis and Agent Carlson decided to arrest Mr. Shimomura

even before his belongings were screened; or maybe Officer Davis and

Agent Carlson conspired in the few seconds between the roller bag contact

19
and Mr. Shimomura’s arrest; or perhaps Officer Davis and Agent Carlson

knew and understood one another so well that they immediately formed an

unspoken agreement to unlawfully arrest Mr. Shimomura. But Mr.

Shimomura does not allege facts that could plausibly explain how Officer

Davis and Agent Carlson might have conspired in the moments preceding

the arrest.

Accordingly, Mr. Shimomura has not pleaded a plausible § 1983

claim for conspiracy to arrest without probable cause in violation of the

Fourth Amendment. We affirm the dismissal of this claim.

C. The district court did not err in disallowing amendment of
the Fourth Amendment claim.

In responding to Agent Carlson’s motion to dismiss, Mr. Shimomura

included a footnote requesting “leave to amend should the Court find his

Complaint deficient.” Id. at 121 n.1. Though the district court suggested

that Mr. Shimomura might amend the complaint, the court ultimately

prevented amendment by making the dismissal with prejudice. Id. at 218,

229.

Mr. Shimomura alleges that the district court abused its discretion by

preventing amendment of the complaint. We disagree. Mr. Shimomura

alleges in the complaint that he was taken into custody by Officer Davis,

not Agent Carlson. See id. at 12. Thus, amendment of the complaint would

have been futile. In these circumstances, we conclude that the district court

20
had discretion to make the dismissal with prejudice. See Brereton v.

Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (“A dismissal

with prejudice is appropriate where a complaint fails to state a claim under

Rule 12(b)(6) and granting leave to amend would be futile.”).

V. Mr. Shimomura has not pleaded a viable claim for deprivation of
procedural due process.

Finally, Mr. Shimomura claims deprivation of procedural due process

under the Fifth and Fourteenth Amendments. The Fifth Amendment

prohibits the federal government from depriving a person of “life, liberty,

or property, without due process of law,” and the Fourteenth Amendment

extends this prohibition to the states. U.S. Const. amend. V; Id. amend.

XIV, § 1.

On these claims, Mr. Shimomura alleges that Officer Davis and

Agent Carlson withheld exculpatory evidence, fabricated inculpatory

evidence, and engaged in a conspiracy. The district court dismissed these

claims, reasoning that they “effectively mirror[]” Mr. Shimomura’s claims

under the Fourth Amendment. Appellant’s App’x at 220. For this ruling,

we engage in de novo review. See p. 15, above. In exercising de novo

review, we uphold the district court’s dismissal because the Fourth

21
Amendment applies rather than the Fifth and Fourteenth Amendments’ Due

Process Clauses. 9

Mr. Shimomura is correct in asserting the constitutional requirement

for probable cause before he could be arrested or charged. Wilkins v.

DeReyes, 528 F.3d 790, 805 (10th Cir. 2008). But this right is protected by

the Fourth Amendment, not by the Fifth or Fourteenth Amendments’ rights

to procedural due process. The Supreme Court has held that “[b]ecause the

Fourth Amendment provides an explicit textual source of constitutional

protection against . . . physically intrusive governmental conduct, that

Amendment, not the more generalized notion of ‘substantive due process,’

must be the guide for analyzing these claims.” Graham v. Connor, 490 U.S.

386, 395 (1989); see Albright v. Oliver, 510 U.S. 266, 274-75 (1994)

(plurality opinion) (stating that the right to be free of arrest and

prosecution without probable cause is governed by the Fourth Amendment,

not the constitutional protections for substantive due process). We have

applied this holding when the alleged denial of due process is procedural

rather than substantive. See Becker v. Kroll, 494 F.3d 904, 919 (10th Cir.

9
Agent Carlson also makes four other arguments: (1) an adequate
post-deprivation remedy exists; (2) Agent Carlson is not subject to the
Fourteenth Amendment because she is not a state actor; (3) a Bivens action
does not exist for claims involving airport screening or violation of the
Fourteenth Amendment; and (4) Agent Carlson is entitled to qualified
immunity. We need not address these arguments because the claim against
Agent Carlson is deficient on other grounds.

22
2007) (“[W]e find Albright’s reasoning regarding substantive due process

equally persuasive with regard to the Fourteenth Amendment’s procedural

component. . . . The more general due process considerations of the

Fourteenth Amendment are not a fallback to protect interests more

specifically addressed by the Fourth Amendment . . . .”).

It is true that “at some point in the prosecutorial process, due process

concerns can be sufficient to support claim under § 1983.” Id. at 920; see

also Pierce v. Gilchrist, 359 F.3d 1279, 1285-86 (10th Cir. 2004) (“[A]t

some point after arrest, and certainly by the time of trial, constitutional

analysis shifts to the Due Process Clause.”). But Mr. Shimomura’s factual

allegations do not cross into the due-process realm.

In Becker v. Kroll, 494 F.3d 904 (10th Cir. 2007), we

“acknowledge[d] that the Fourteenth Amendment’s protections encompass

harms to liberty outside the scope of the Fourth Amendment’s concern with

freedom from restraint.” Becker, 494 F.3d at 920. But Mr. Shimomura has

confined his allegation of injury to the deprivation of his physical liberty.

Thus, his claim is governed by the Fourth Amendment rather than the Due

Process Clauses.

Because the Fourth Amendment provides the sole source of

constitutional protection, Mr. Shimomura has not asserted a valid claim of

procedural due process. As a result, the district court properly dismissed

the claims involving procedural due process.

23
VI. Conclusion

The district court’s judgment is affirmed.

24
No. 14-1418, Shimomura v. Carlson

TYMKOVICH, Chief Judge, concurring in part and dissenting in part:

I join the majority except as to its holding that Officer Davis is entitled to

qualified immunity.

In concluding that a reasonable officer with Officer Davis’s vantage point

could have thought there was probable cause, the majority decides a factual

dispute that should be submitted to a jury. Shimomura alleges that Officer Davis

could not reasonably perceive evidence of intent or recklessness. He also alleges

that the officer could not reasonably perceive evidence of bodily injury, such as

pain. If that version of the facts is true, then there was neither actual nor arguable

probable cause to believe Shimomura had committed assault within the agreed-

upon meaning of the ordinance. That satisfies Shimomura’s initial burden to

allege a clearly established violation of a constitutional right. See Fogarty v.

Gallegos, 523 F.3d 1147, 1158–59 (10th Cir. 2008) (“In the context of an

unlawful arrest our analysis is simple, for the law was and is unambiguous: a

government official must have probable cause to arrest an individual.” (brackets

and internal quotation marks omitted)). It also places a new burden on Officer

Davis, on his motion for summary judgment based on qualified immunity, to show

that Shimomura’s version of the facts is wrong—that is, that an officer could have

reasonably perceived evidence of bodily injury and intent or recklessness.

Officer Davis has not met that burden.
 The majority concludes that a person standing at Officer Davis’s vantage

point could have perceived the requisite evidence, but that is not beyond dispute.

Recently, in Tolan v. Cotton, 134 S. Ct. 1861 (2014), the Supreme Court reversed

a finding of qualified immunity because the appellate court had resolved disputed

factual propositions in favor of the moving officer. Most notably, the Court

indicated that disputed questions about what facts an officer should have

perceived are appropriate for a jury:

The court noted, and the parties agree, that while Cotton
was grabbing the arm of his mother, Tolan told Cotton,
“[G]et your [f***ing] hands off my mom.” But Tolan
testified that he “was not screaming.” And a jury could
reasonably infer that his words, in context, did not amount
to a statement of intent to inflict harm.

Id. at 1867 (emphasis added) (citations omitted). This illustrates the divide

between determining whether there was probable (or arguable probable) cause and

determining the facts that support probable cause. Just as a jury in Tolan should

have decided whether the undisputed words, in context, seemed threatening, a

jury here should decide whether the undisputed contact, in context, seemed

intentional or capable of causing bodily injury.

We do not know what Officer Davis saw from his angle. All we have is the

video, Shimomura’s complaint, and affidavits presented on summary judgment.

Those materials do not definitively settle the facts in Officer Davis’s favor. A

jury could find that even given his angle and how little time he had to process

2
what had happened, it was unreasonable to think the contact was intentional or

reckless. And a jury most certainly could find that there was no evidence of

bodily injury. Having watched the video, I find it dubious that anyone viewing

the contact from any angle could have reasonably thought that Agent Carlson felt

pain. Although she later reported pain, it appears that this was not until after

Shimomura’s arrest.

For those reasons, I respectfully dissent as to the conclusion that Officer

Davis is entitled to qualified immunity.

3