Youbyoung Park v. Gaitan

FILED
United States Court of Appeals
Tenth Circuit

March 1, 2017
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

YOUBYOUNG PARK,

Plaintiff-Appellant,
No. 15-2020
v.
(D.C. No. 1:11-CV-00987-KG-CG)
(D.N.M.)
ADAM GAITAN, in his individual
capacity; JOHN DYKES; JOHN
BARRICKLOW,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before LUCERO, HOLMES, and MATHESON, Circuit Judges.

Plaintiff-Appellant Youbyoung Park (“Mr. Park”) filed this 42 U.S.C.

§ 1983 action against Officers Adam Gaitan (“Officer Gaitan”), John Dykes

(“Officer Dykes”), and John Barricklow (“Officer Barricklow”)—collectively,

“Defendants”—alleging that Defendants’ execution of a search warrant at Mr.

Park’s self-service laundry facility and subsequent seizure of surveillance

equipment violated his federal constitutional and state-law rights. Defendants

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
moved for summary judgment, asserting their entitlement to qualified immunity

on Mr. Park’s § 1983 claims, and to a favorable judgment on the merits of Mr.

Park’s state-law claims. The district court entered summary judgment in

Defendants’ favor, and Mr. Park appeals. Exercising our jurisdiction under 28

U.S.C. § 1291, we affirm in part and reverse and remand in part.

I

A1

On November 3, 2010, Officer Gaitan, a detective at the Bernalillo County

Sheriff’s Office (“BCSO”) in New Mexico, visited Mr. Park’s self-service laundry

facility while investigating a recent stabbing incident at a nearby establishment.

Although Mr. Park and his business had no involvement in the stabbing, Officer

Gaitan believed that surveillance video recordings from the laundry facility might

1
In reviewing the grant of summary judgment on qualified-immunity
grounds, as explained infra, we “‘usually’ must ‘adopt[] . . . the plaintiff’s
version of the facts,’” Thomas v. Durastanti, 607 F.3d 655, 659 (10th Cir. 2010)
(alteration in original) (quoting Scott v. Harris, 550 U.S. 372, 378 (2007)), unless
“blatantly contradicted by the [underlying] record,” Thomson v. Salt Lake Cty.,
584 F.3d 1304, 1312 (10th Cir. 2009) (quoting York v. City of Las Cruces, 523
F.3d 1205, 1210 (10th Cir. 2008)). Accordingly, we cannot adopt a party’s
version of the facts in the face of “clear contrary video evidence.” Thomas, 607
F.3d at 659. In this case, there is a relevant video recording, without
accompanying audio, that captures key elements of Mr. Park’s interactions with
Defendants. “We rely on that video evidence here, while acknowledging that it
did not capture everything,” id.—notably, the audio portion of the parties’
encounters, see Clark v. Bowcutt, --- F. App’x ----, 2017 WL 56283, at *5 (10th
Cir. 2017) (citing Thomas, and considering video evidence); Valencia v. De Luca,
612 F. App’x 512, 514 (10th Cir. 2015) (same), cert. denied, 136 S. Ct. 546
(2015). “Therefore, in addition to relying on the video we also continue to view
the evidence in the light most favorable to” Mr. Park. Thomas, 607 F.3d at 659.

2
confirm or refute a suspect’s claimed alibi. Accordingly, Officer Gaitan entered

Mr. Park’s business in plain clothes, displayed his badge and gun, and asked Mr.

Park to show him the surveillance video. Mr. Park—who was born in Korea and

has limited English skills—did not recognize Officer Gaitan as a law enforcement

officer and believed he had come to inquire about some unknown “accident”;

consequently, he refused to reveal the video recordings to Officer Gaitan, whom

he believed was non-police personnel. Aplt.’s App. at 153–54 (Park Dep., dated

Oct. 9, 2013). Following his refusal, Officer Gaitan warned Mr. Park that he

would go to jail if he failed to produce the video, but Mr. Park said nothing.

Officer Gaitan then handed Mr. Park the following note: “If you are unwilling to

assist me with my investigation I will get a search warrant for your property,”

Aplt.’s App. at 166 (capitalization altered), and left the laundry facility.

On the same afternoon (i.e., November 3), dressed in plain clothes, Officer

Gaitan returned to Mr. Park’s business with a search warrant for the surveillance

video footage and recording equipment; he was accompanied by three plain-

clothed BCSO detectives and two uniformed officers—Officers Dykes and

Barricklow. When the officers entered the business, they found Mr. Park seated

behind his counter. Officer Gaitan approached the counter, and briefly displayed

3
his badge and gun, and a piece of paper. From there, the parties present vastly

divergent accounts of the ensuing moments immediately before Mr. Park’s arrest. 2

Under Mr. Park’s version of events, Defendants approached him without

explaining the purpose for the encounter, and without providing a copy of the

search warrant or an opportunity to review its contents. Indeed, Defendants

confronted him without uttering “any orders” or “say[ing] anything.” Aplt.’s

App. at 151, 175 (Park Dec., dated Dec. 23, 2012). While this encounter was

taking place, Mr. Park displayed no observable signs of resistance, nor did he

obstruct the officers’ access to the video equipment. Nevertheless, after a few

seconds of Mr. Park’s silence, Officer Gaitan directed Officer Dykes to “pull

[him] out” from behind the counter. Id. at 151. Officer Gaitan and Officer Dykes

then lifted Mr. Park out of his chair, held him by the arms, and forcibly escorted

2
Mr. Park contends, on the one hand, that Defendants seized him
abruptly without “say[ing] anything,” Aplt.’s App. at 151, without “a reasonable
opportunity to understand their purpose for approaching him,” Aplt.’s Opening
Br. at 48, and “without . . . offer[ing] an interpreter or the opportunity to read the
warrant,” id. at 10. Officer Gaitan claims, by contrast, that he “approached Mr.
Park, told him that [he] had obtained a search warrant to view the video” and
asked Mr. Park to facilitate his inquiry—specifically, telling Mr. Park that he
wanted “to look at it [i.e., the video recording]”; but, he submits, Mr. Park
“refused to comply.” Aplt.’s App. at 67 (Gaitan Dep., dated Oct. 16, 2012).
Although the video evidence captures the encounter, we have no accompanying
audio to independently review any conversation between Mr. Park and Officer
Gaitan. The visual depiction reveals no blatant contradiction of Mr. Park’s
account. Accordingly, we adopt, as we must, Mr. Park’s version of events, and
decline to accept Officer Gaitan’s competing factual account.

4
him toward the building’s exit. Initially, Mr. Park offered no resistance to the

officers’ use of force.

As they approached the exit, however, Mr. Park began to tense his arms,

brace his legs, and attempt to pull away from the officers. In light of these

actions, Officer Gaitan forcibly took Mr. Park to the ground by giving “him a

knee strike to the side of his body.” Aplt.’s App. at 171. Once in a “face down

stabilization position,” they “handcuffed him,” escorted him from the premises,

and placed him in a patrol car. Id.

With Mr. Park in custody, one of the BCSO officers, Detective Kyle

Hartsock (“Detective Hartsock”), began reviewing the contents of Mr. Park’s

saved video recordings. Detective Hartsock quickly determined, however, that

the relevant recording had already been deleted or overwritten to make room for

more recent recordings. As a result, Detective Hartsock decided to take the video

equipment and Mr. Park’s connected laptop back to the computer-forensics

laboratory to determine if he could recover the relevant footage. After concluding

the search, Officer Dykes and Officer Barricklow transported Mr. Park to the

South Valley BCSO Substation, and charged him with the misdemeanor offense

of resisting an officer.

During the pendency of the criminal charges, Mr. Park’s defense counsel

sought discovery concerning the evidence against him, including any recordings

from the seized video equipment. The State of New Mexico (“State”), however,

5
never provided responsive materials, and Officer Gaitan ultimately requested

dismissal of the misdemeanor charge and the state court acceded to his request.

In the meantime, Detective Hartsock informed Officer Gaitan that he could not

extract any additional recordings from the video equipment. At that point,

Officer Gaitan “believed that the equipment and its contents had no evidentiary

value” and he deposited the DVR and laptop in the Albuquerque Police

Department Evidence Room. Aplt.’s App. at 250 (Gaitan Aff., dated July 26,

2013). Officer Gaitan then closed the stabbing investigation “pending further

information”—and “could have [immediately] released” the seized video-related

items to Mr. Park—but he “honestly forgot,” despite his responsibility to return

the seized property as the affiant on the search warrant. Aplt.’s App. at 19–20.

As a result, Mr. Park did not receive the items until December of 2012, when the

district court in the present case ordered their return.

B

On November 4, 2011, Mr. Park filed the underlying civil action against

Defendants, asserting constitutional claims for unlawful seizure and excessive

force in violation of the Fourth Amendment, and tort claims under New Mexico

law for assault, battery, false arrest, and false imprisonment. On December 7,

2012, Defendants moved for summary judgment on all of Mr. Park’s claims.

Citing newly discovery evidence, however, Mr. Park moved to amend his

complaint on December 24, 2012, in order to assert a First Amendment claim

6
against Officer Gaitan. The district court permitted the amendment on February

11, 2013, and Mr. Park filed his amended complaint on the same day. Officer

Gaitan then filed an additional summary-judgment motion on Mr. Park’s newly

asserted First Amendment claim.

The district court resolved the summary-judgment motions in two separate

decisions. First, on March 31, 2014, the district court granted Defendants’

summary-judgment motion with respect to (1) Mr. Park’s Fourth Amendment

unlawful seizure and excessive force claims, notably finding that Mr. Park had

failed to establish that his constitutional rights were violated, and (2) his related

state-law tort claims. An order was entered in connection with this March 31

decision (the “initial summary-judgment decision”), styled “Partial Dismissal and

Partial Summary Judgment.” Aplt.’s App. at 343 (capitalization altered) (Partial

Dismissal and Partial Summ. J., filed Mar. 31, 2014). On January 6, 2015, the

district court then granted Officer Gaitan’s summary-judgment motion on Mr.

Park’s First Amendment claims (the “final summary-judgment decision”),

concluding again that Mr. Park had failed to demonstrate a constitutional

violation. Accompanying this decision was a document styled, “Final Summary

Judgment,” stating that “this case is now terminated.” Id. at 353 (capitalization

altered) (Final Summ. J., filed Jan. 6, 2015).

In the aftermath of those decisions, on February 4, 2015, Mr. Park filed a

notice of appeal “from the Final Summary Judgment . . . entered . . . on January

7
6, 2015, and all interlocutory rulings adverse to Plaintiff, including the document

entitled ‘Partial Dismissal and Partial Summary Judgment’ . . . filed March 31,

2014.” Id. at 354.

II

Prior to reaching the merits, we first address Defendants’ contention that

we lack jurisdiction over the district court’s initial summary-judgment decision.

Specifically, Defendants submit that the district court’s March 31, 2014, “Partial

Summary Judgment” qualified as a final judgment for purposes of appeal,

rendering Mr. Park’s notice of appeal—filed nearly one year later—untimely

relative to those claims. However, because the initial summary-judgment

decision constituted a non-appealable interlocutory order, we conclude that our

appellate jurisdiction extends to all claims that Mr. Park raises on appeal.

Federal circuit courts have jurisdiction to review only “final decisions” of

district courts. 28 U.S.C. § 1291. Generally, “[a] final decision must dispose of

all claims by all parties.” New Mexico v. Trujillo, 813 F.3d 1308, 1316 (10th Cir.

2016). Federal Rule of Civil Procedure 54, however, allows a district court to

“direct entry of a final judgment as to one or more, but fewer than all, claims or

parties only if the court expressly determines that there is no just reason for

delay.” Fed. R. Civ. P. 54(b) (emphasis added). As we recently explained,

the “expressly determines” language of the rule . . . require[s]
district courts to make two explicit determinations in the
certification order. First, the district court must determine the

8
 judgment is final. Second, it must determine there is no just
reason for delay of entry of its judgment. In doing so, district
courts should “clearly articulate their reasons and make careful
statements based on the record supporting their determination of
‘finality’ and ‘no just reason for delay’ so that we can review a
54(b) order more intelligently and thus avoid jurisdictional
remands.”

Trujillo, 813 F.3d at 1316 (emphases added) (citations omitted) (quoting

Stockman’s Water Co. v. Vaca Partners, 425 F.3d 1263, 1265 (10th Cir. 2005)).

Despite Defendants’ contention that the initial summary-judgment decision

qualified as a final judgment, this decision fails to contain any of the requisite

language, and no party requested a Rule 54(b) certification. 3 Accordingly, we

conclude that the initial summary-judgment decision constituted a non-appealable

interlocutory order, which merged into the final judgment terminating the district

3
Defendants’ suggestion that a judgment dismissing fewer than all
claims may be construed as a final judgment under Rule 54(b) in the absence of
language stating that there is no just reason for delay is misguided. See Fed. R.
Civ. P. 54(b) (requiring that “the court expressly determine[] that there is no just
reason for delay” (emphasis added)); Stockman’s Water Co., 425 F.3d at 1266
(discerning no jurisdiction where the order at issue “fail[ed] to comport with Rule
54(b)’s requirement that a final judgment be entered only upon an express
determination that there is no just reason for delay”). While, as Defendants note,
the Fifth Circuit has held that an order may still be appealable under Rule 54(b)
even where a district court fails “to mechanically recite the words ‘no just reason
for delay,’” such an order must otherwise “reflect[] the trial judge’s clear intent to
enter a partial final judgment under Rule 54(b).” Kelly v. Lee’s Old Fashioned
Hamburgers, Inc. (Lee’s Old Fashioned Hamburgers of New Orleans, Inc.), 908
F.2d 1218, 1220 (5th Cir. 1990). Even if we could deviate from our own
precedent and follow the Fifth Circuit’s lead (which of course we cannot do), the
order here contains no indication that the district court intended to enter partial
final judgment, as envisioned by Rule 54(b). Therefore, the order would not be
final even under the Fifth Circuit’s standard.

9
court case. See McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1104 (10th

Cir. 2002) (concluding that “an earlier interlocutory order . . . merged into the

final judgment,” allowing appellate jurisdiction over the earlier order).

Importantly, Mr. Park timely filed a notice of appeal as to that final judgment,

entered on January 6, 2015; accordingly, that appeal provides the basis for our

jurisdiction, not only with respect to the final summary-judgment decision, but

also as to the initial summary judgment decision, which merged into the final

judgment. In other words, we properly exercise jurisdiction over all of Mr. Park’s

claims.

III

Turning to the merits, Mr. Park argues that the district court improperly

granted summary judgment to the Defendants on his § 1983 claims for violations

of the Fourth and First Amendments, and on his state-law claims. The district

court found, as detailed supra, that Defendants were entitled to qualified

immunity on Mr. Park’s § 1983 claims, and to a favorable judgment on the merits

as to Mr. Park’s state-law claims. Reviewing each claim in turn, we conclude (1)

that Defendants are entitled to qualified immunity on Mr. Park’s Fourth

Amendment unlawful seizure and excessive force claims and on his First

Amendment claim; (2) that the district court erred in entering summary judgment

in Defendants’ favor on Mr. Park’s false arrest and false imprisonment claims;

10
and (3) that the district court appropriately entered summary judgment in

Defendants’ favor on Mr. Park’s assault and battery claims.

A

“We review grants of summary judgment based on qualified immunity de

novo.” 4 Stonecipher v. Valles, 759 F.3d 1134, 1141 (10th Cir. 2014), cert.

denied, 135 S. Ct. 881 (2014). At the summary judgment stage, the court may not

weigh evidence and must resolve genuine disputes of material fact in favor of the

nonmoving party. See Tolan v. Cotton, --- U.S. ----, 134 S. Ct. 1861, 1866 (2014)

(per curiam).

However, when a defendant raises the qualified-immunity defense, the

plaintiff bears the burden of demonstrating “(1) that the official violated a

statutory or constitutional right, and (2) that the right was ‘clearly established’ at

the time of the challenged conduct.” Quinn v. Young, 780 F.3d 998, 1004 (10th

Cir. 2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). We may

address the two prongs of the qualified-immunity standard in either order; “if the

plaintiff fails to establish either prong of the two-pronged qualified-immunity

standard, the defendant prevails on the defense.” A.M. v. Holmes, 830 F.3d 1123,

1134–35 (10th Cir. 2016).

4
Because we review summary-judgment determinations de novo, “we
need not separately address [Mr. Park’s] argument that the district court erred by
viewing evidence in the light most favorable to [Defendants].” Rivera v. City and
Cty. of Denver, 365 F.3d 912, 920 (10th Cir. 2004).

11
 On appeal, Mr. Park challenges Defendants’ entitlement to qualified

immunity on his Fourth Amendment claims of unlawful seizure and excessive

force and on his First Amendment claims. We address each claim in turn.

1

a

An officer violates a plaintiff’s Fourth Amendment right to be free from

unlawful seizure when the officer effectuates “a highly intrusive or lengthy

[warrantless] search or detention” without “probable cause to believe that a

criminal offense has been or is being committed.” Quinn, 780 F.3d at 1006 (first

quoting United States v. Villagrana–Flores, 467 F.3d 1269, 1273 (10th Cir.

2006); then quoting Buck v. City of Albuquerque, 549 F.3d 1269, 1281 (10th Cir.

2008)). “Consequently, in a § 1983 action based on a warrantless arrest, the

defendant may be entitled to qualified immunity if he had probable cause to arrest

the plaintiff.” Id.

“We assess probable cause under an objective standard of reasonableness,”

id., asking “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,’” Fogarty v. Gallegos, 523 F.3d 1147, 1156 (10th

Cir. 2008) (quoting United States v. Edwards, 242 F.3d 928, 934 (10th Cir.

2001)). “Our determination on this score is an independent and objective one,”

12
meaning that “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.” Id.

Where a defendant’s claim of probable cause rests on a state criminal

statute, as it does here, “the precise scope of [the federal constitutional right]

uniquely depends on the contours of a state’s substantive criminal law.” Kaufman

v. Higgs, 697 F.3d 1297, 1300–01 (10th Cir. 2012). Accordingly, we look to the

state’s highest court “when inquiring whether the [d]efendants’ interpretation of

the [relevant criminal] statute was one that a reasonable officer would have held

at the time of [the] arrest.” Id. at 1301. If, however, “a state Supreme Court has

not spoken on the question at issue, we assume (without deciding) that a

reasonable officer would seek guidance regarding the scope of proper conduct at

least in part from any on-point decisions of the state’s intermediate court of

appeals.” A.M., 830 F.3d at 1140–41; cf. Kokins v. Teleflex, Inc., 621 F.3d 1290,

1297 (10th Cir. 2010) (noting in a civil diversity case that “[t]he decision of an

intermediate appellate state court is a datum for ascertaining state law which is

not to be disregarded by a federal court unless it is convinced by other persuasive

data that the highest court of the state would decide otherwise.” (alteration in

original) (quoting Stickley v. State Farm Mut. Auto. Ins. Co., 505 F.3d 1070, 1077

(10th Cir. 2007))).

13
 Applying these principles, our inquiry narrowly focuses on (1) whether

Defendants had probable cause to arrest 5 Mr. Park for violating New Mexico

Statute Annotated § 30-22-1 (1978) (“Section 30-22-1”)—specifically, subsection

(A) of that statute—by resisting, evading, or obstructing an officer; 6 and, if not,

(2) whether clearly established law as of November 2010 made the illegality of

that arrest indisputable. See Quinn, 780 F.3d at 1007. Contrary to the district

court, we conclude that Defendants lacked probable cause to arrest Mr. Park

under Section 30-22-1(A), but we nevertheless affirm the court’s judgment on the

alternative ground that Mr. Park failed to demonstrate that clearly established law

squarely condemned Defendants’ conduct at the time of Mr. Park’s arrest in

November 2010. See, e.g., Nakkhumpun v. Taylor, 782 F.3d 1142, 1157 (10th

Cir. 2015) (noting that “we may affirm the judgment on any ground supported by

the record”), cert dismissed, 136 S. Ct. 499 (2015); accord A.M., 830 F.3d at

1157.

5
It is undisputed for purposes of this appeal that Defendants seized
Mr. Park within the meaning of the Fourth Amendment when Officer Gaitan and
Officer Dykes removed him from his seat.
6
The narrow focus of our inquiry makes this case distinguishable from
cases like Denver Justice & Peace Committee, Inc. v. City of Golden, 405 F.3d
923 (10th Cir. 2005), which Mr. Park cites, which concerned officers’ authority to
conduct a “suspicionless pat-down frisk” of persons “present during the execution
of a search warrant,” id. at 927, 932, which implicated a question of the existence
of “reasonable, individualized suspicion” for the detention, id. at 932, not (as
here) the existence of probable cause for an arrest.

14
 b

Section 30-22-1(A)—the provision cited by Defendants as the basis for

their probable-cause determination—provides that, “[whoever] knowingly

obstruct[s], resist[s] or oppos[es] any officer of [the state of New Mexico] or any

other duly authorized person serving or attempting to serve or execute any

process or any rule or order of any of the courts of [the] state or any other judicial

writ or process” commits the misdemeanor offense of “[r]esisting, evading or

obstructing an officer.” N.M. Stat. Ann § 30-22-1(A). Section 30-22-1(A) is one

provision of a multi-pronged statute that generally criminalizes “[r]esisting,

evading or obstructing an officer.” Id. Under that larger scheme, “[r]esisting,

evading or obstructing an officer consists of:”

A. knowingly obstructing, resisting or opposing any officer of
this state or any other duly authorized person serving or
attempting to serve or execute any process or any rule or order
of any of the courts of this state or any other judicial writ or
process;

B. intentionally fleeing, attempting to evade or evading an officer
of this state when the person committing the act of fleeing,
attempting to evade or evasion has knowledge that the officer is
attempting to apprehend or arrest him;

C. willfully refusing to bring a vehicle to a stop when given a
visual or audible signal to stop, whether by hand, voice,
emergency light, flashing light, siren or other signal, by a
uniformed officer in an appropriately marked police vehicle; or

D. resisting or abusing any judge, magistrate or peace officer in
the lawful discharge of his duties.

15
N.M. Stat. Ann. § 30-22-1(A)–(D) (emphases added) (the “resisting statute”).

In interpreting the phrase “[r]esisting, evading, or obstructing an officer,”

New Mexico courts have emphasized that the statutory phrase envisions

“primarily . . . physical acts of resistance.” State v. Wade, 667 P.2d 459, 460

(N.M. Ct. App. 1983) (quoting N.M. Stat. Ann. § 30-22-1); accord State v.

Prince, 972 P.2d 859, 863 (N.M. Ct. App. 1998) (quoting Wade, and reaffirming

the same definition). Borrowing from Wade, we have similarly concluded that,

“[u]nder New Mexico law, ‘[r]esisting, evading, or obstructing an officer

primarily consists of physical acts of resistance.’” Keylon v. City of Albuquerque,

535 F.3d 1210, 1216 (10th Cir. 2008) (second alteration in original) (quoting

Wade, 667 P.2d at 460). In this case, however, Mr. Park displayed no physical

acts of resistance prior to seizure, and Defendants seem to acknowledge that this

principal interpretation of the statute does not provide them with a basis for

probable cause.

Rather, citing New Mexico authority construing different portions of the

resisting statute, Defendants advance an additional interpretation—namely, that

“failing to comply with an officer’s lawful demand” constitutes resisting an

officer. Aplees.’ Response Br. at 44 (citing City of Espanola v. Archuleta, No.

28,620, 2010 WL 3997984 (N.M. Ct. App. Feb. 5, 2010) (unpublished)). On this

point, Defendants’ contention finds some support in decisions of the New Mexico

Court of Appeals and our own court.

16
 Indeed, in State v. Diaz, the New Mexico Court of Appeals defined

“resisting,” as used in Section 30-22-1(D), to refer to a defendant’s overt physical

act or a defendant’s refusal to obey lawful police commands. 908 P.2d 258,

259–62 (N.M. Ct. App. 1995); accord Archuleta, 2010 WL 3997984

(summarizing and applying Diaz’s holding). 7 Similarly, in City of Roswell v.

Smith, the New Mexico Court of Appeals construed “resisting,” as used in

Roswell, N.M. Code Section 10-48(a)(2), which mirrors Section 30-22-1(D), 8 to

include a defendant’s failure to follow an officer’s lawful instructions. 133 P.3d

271, 272–73 (N.M. Ct. App. 2006).

In light of these decisions, we have found an arrest “justified” under

various provisions of the resisting statute where the defendant has refused to

comply with an officer’s command, but only under circumstances where the

command precipitating the arrest was “actually lawful.” Storey v. Taylor, 696

7
Archuleta is an unpublished memorandum opinion of the New
Mexico Court of Appeals. Although such opinions have “no precedential value,”
Gormley v. Coca-Cola Enters., 85 P.3d 252, 255 (N.M. Ct. App. 2003); accord
N.M. R. App. P. 12-405(A) (explaining the limitations of “[n]on-precedential
dispositions” by memorandum opinion), they may be cited in New Mexico courts
“for any persuasive value,” N.M. R. App. P. 12-405(A). Applying these
principles, we find Archuleta persuasive to the extent it recognizes the Diaz
holding, which is equally reflected in our own precedent.
8
“Section 10–48(a)(2) prohibits obstructing an officer, which it
defines as ‘[r]esisting, obstructing or abusing any . . . peace officer in the lawful
discharge of his duties.’” Smith, 133 P.3d at 272.

17
F.3d 987, 993 n.6 (10th Cir. 2012); accord Romero v. Story, 672 F.3d 880, 889

(10th Cir. 2012).

In Storey, for example, we considered whether a New Mexico police officer

had probable cause to arrest Mr. Storey after he “disobeyed [an officer’s] order to

step out of [his] house” during an investigation into an anonymous report of a

domestic disturbance. 696 F.3d at 990–91, 993. Given the warrantless nature of

the inquiry, however, we concluded that “[the officer] had no [lawful] basis on

which to order [Mr.] Storey out of his [own] house.” Id. at 993. Accordingly, we

held that “[Mr.] Storey’s refusal to obey [the unlawful order] could not [by itself]

justify his arrest” under Section 30-22-1(D). Id. at 994.

Analogously, in Romero, officers knocked on Mr. Romero’s door to

investigate reports of vandalism. See 672 F.3d at 883–84. Although Mr. Romero

initially compiled with their requests, “not understanding why law enforcement

knocked on [his] door, [he ultimately] turned back toward the apartment and

proceeded one or two steps.” Id. at 883. The officers “grabbed [Mr. Romero] to

prevent [his] entry into the apartment” and arrested him based on the “flight” and

“evasion” provisions of Section 30-22-1(B). Id. However, because the officers

lacked “reasonable suspicion or probable cause” to “detain [Mr. Romero] for the

vandalism,” we concluded that the officers had no lawful basis “to force [him] to

speak” and thus no grounds to justify his arrest under Section 30-22-1(B). Id. at

889.

18
 For our analytical purposes, it is important to underscore at the outset that

Diaz, Archuleta, Smith, Storey, and Romero addressed Sections 30-22-1(B) and

(D) (or an analogous municipal provision), not Section 30-22-1(A), the provision

at issue here; therefore, these cases do not directly control our interpretation of

the latter provision. But we acknowledge that an essential premise of those

decisions—viz., “[r]esisting” includes disobedience to a lawful police

command—lends persuasive support to Defendants’ understanding of Section 30-

22-1(A). That is particularly true because the term “resisting” appears in the

prefatory portion of the resisting statute; that prefatory language clarifies that the

statutory subsections that follow indicate what, inter alia, “resisting” “consists

of.” And the term also appears not only in subsection (D), but also in the specific

subsection at issue here, subsection (A). Therefore, one can reasonably infer that

the New Mexico legislature intended “resisting” to have a uniform meaning

throughout the resisting statute. Compare Sorenson v. Sec’y of Treasury, 475

U.S. 851, 860 (1986) (“The normal rule of statutory construction assumes that

‘identical words used in different parts of the same act are intended to have the

same meaning.’” (quoting Helvering v. Stockholms Enskilda Bank, 293 U.S. 84,

87 (1934))), and First Nat’l Bank of Durango v. Woods (In re Woods), 743 F.3d

689, 697 (10th Cir. 2014) (same), with State v. Jade G., 154 P.3d 659, 667 (N.M.

2007) (applying the same principle of statutory interpretation under New Mexico

law). Nevertheless, even if we assume, without deciding, that the failure to

19
follow a lawful police command constitutes a viable theory of “[r]esisting” under

Section 30-22-1(A), Defendants’ argument based on such a theory would still fail.

Importantly, Defendants’ argument tacitly requires us to accept their view

of the facts—viz., that Officer Gaitan advised Mr. Park that he had a search

warrant to review the video footage, and asked (or demanded) that Mr. Park help

him access the video. As explained supra, however, our legal framework in this

context requires us to reject Defendants’ version of events, in favor of Mr. Park’s

account that (1) Defendants approached him without explaining the purpose for

the encounter, (2) without providing a copy of the search warrant or an

opportunity to review its contents, and (3) without issuing any orders or

commands. Viewed that way, the record provides no factual basis to apply

Defendants’ lawful-order theory of criminal conduct to Mr. Park. In other words,

accepting Mr. Park’s version of the facts, Defendants never gave him an

order—lawful or otherwise. Thus, even if we concluded that the failure to follow

a lawful order constitutes a violation of Section 30-22-1(A) (despite the paucity

of authority on that specific question), Defendants have not demonstrated

probable cause under that theory.

Lastly, Defendants also seek to bolster their assertion of probable cause

with an unpublished decision of our court, Boydston v. Isom, 224 F. App’x 810

(10th Cir. 2007). Putting aside the fact that Boydston is not precedential, and

therefore not controlling here, it does not help Defendants. A car dealer, the

20
Boydston plaintiff was arrested for denying the request of New Mexico police

officers “to review the [temporary tag] records relating to the sale of a vehicle” to

a customer. Id. at 812. We analyzed whether the officers had probable cause to

arrest the plaintiff under Section 30-22-1(D), and New Mexico Statute Annotated

§ 66-4-5(E) (“Section 66-4-5(E)”), which requires auto dealers to permit law

enforcement officers to inspect temporary tag records, id. at 815 & n.3, and

concluded that they did, id. at 815–817. In doing so, we generally observed,

“[w]ith respect to each charge, the same facts demonstrate that a reasonable

officer would have probable cause to believe [the plaintiff] violated New Mexico

law.” Id. at 815. We stated in this regard: “It is undisputed that Defendants went

to [the plaintiff’s auto store] during normal business hours and requested of [the

plaintiff] that they be allowed access to the records, as permitted by [Section 66-

4-5(E)]. It is also undisputed that [the plaintiff] denied Defendants access to the

records.” Id.

Boydston is distinguishable and cannot advance Defendants’ cause. First of

all, even if we assume as we did supra that cases construing the probable-cause

requirements for an arrest under Section 30-22-1(D) are applicable in the context

of an arrest (as here) under Section 30-22-1(A), Defendant’s reliance on Boydston

confronts the same insurmountable, factual obstacle as the other decisions that

they cite: that is, accepting the facts as Mr. Park would have them, Defendants

never asked (i.e., ordered) Mr. Park to provide them with the video recording.

21
Accordingly, unlike the Boydston plaintiff, Mr. Park cannot be said to have

violated the resisting statute by refusing a lawful police request for access to

certain information. And, second, our analysis in Boydston of the plaintiff’s

arrest under Section 66–4–5(E)—a provision of an entirely different statutory

scheme than the one at issue here—is inapposite. Indeed, under that statute, the

Boydston plaintiff had an affirmative obligation to provide the police officers

upon request with access to the kind of records that they sought. See Boydston,

224 F. App’x at 815. However, there is no analogous language in Section 30-22-

1(A), and, in any event, Defendants did not make a request for the video

recording (under Mr. Park’s version of the facts) that might have triggered any

such purported affirmative obligation. Accordingly, Defendants’ reliance on

Boydston is unavailing. 9

9
Even if we could properly accept the idea (which we cannot) that
Officer Gaitan issued an order, demanding that Mr. Park provide him with access
to the video recording, Defendants have not demonstrated that they could prevail.
Specifically, the relevant caselaw discussed supra does not proscribe failure to
follow just any order from a police officer; rather, the order must be a lawful one.
See, e.g., Diaz, 908 P.2d at 259–62; Smith, 133 P.3d at 272–73; Storey, 696 F.3d
at 994; Romero, 672 F.3d at 889. Applying these principles here, Defendants
provide no support for the notion that Officer Gaitan’s purported order was lawful
or that, consequently, Mr. Park was legally obliged to facilitate Defendants’
access to the video recording and other items identified in the search warrant.
Indeed, the search warrant possessed by Officer Gaitan imposed no obligations on
the property owner. Cf. Boydston, 224 F. App’x at 815 (addressing a statute that
imposed an affirmative obligation on auto dealers to provide the police officers
upon request with access to temporary tag records). To the contrary, the search
warrant “COMMANDED” Officer Gaitan to “serv[e] [the] warrant and [a] copy
of the” supporting affidavit, “to search . . . the business . . . for the [video tape],”
(continued...)

22
 For all of the foregoing reasons, we conclude that Defendants lacked

probable cause to arrest Mr. Park for violating Section 30-22-1(A).

c

Despite our probable-cause conclusion, we still must consider whether

clearly established law, at the time of Mr. Park’s arrest, would have made the

illegality of his arrest indisputable. On this issue, we recently explained,

“A clearly established right is one that is ‘sufficiently clear that
every reasonable official would have understood that what he is
doing violates that right.’” Although plaintiffs can overcome a
qualified-immunity defense without a favorable case directly on
point, “existing precedent must have placed the statutory or
constitutional question ‘beyond debate.’” “The dispositive
question is ‘whether the violative nature of the particular
conduct is clearly established.’” In the Fourth Amendment
context, “the result depends very much on the facts of each case,”
and the precedents must “squarely govern” the present case.

9
(...continued)
and “to seize it.” Aplt.’s App. at 116. In this regard, New Mexico Rule
5-211—which “codifies the procedural requirements for issuance and execution of
a search warrant in New Mexico,” State v. Malloy, 34 P.3d 611, 614 (N.M. Ct.
App. 2001), imposed on Officer Gaitan the obligation to show Mr. Park the
search warrant and affidavit to provide him with adequate “assurance and notice
during the search,” State v. Boyse, 303 P.3d 830, 835 (N.M. 2013) (quoting
Malloy, 34 P.3d at 614). However, the videotape clearly indicates that Officer
Gaitan failed to furnish the search warrant and affidavit to Mr. Park prior to his
arrest (irrespective of whether, as Officer Gaitan maintains, he actually showed
the search warrant to Mr. Park), and Officer Gaitan has not testified to the
contrary, see Aplt.’s App. at 67. Therefore, even under a set of facts more
favorable to Defendants—where Officer Gaitan issued an order to Mr. Park to
assist Defendants in retrieving the surveillance video pursuant to a lawful search
warrant—Defendants have not demonstrated that they could prevail; that is, they
have not shown that they possessed probable cause to arrest Mr. Park under
Section 30-22-1(A) for failure to comply with a lawful order.

23
 “[Q]ualified immunity protects ‘all but the plainly incompetent
or those who knowingly violate the law.’”

Aldaba v. Pickens (Aldaba II), 844 F.3d 870, 877 (10th Cir. 2016) (alteration in

original) (citations omitted) (quoting Mullenix v. Luna, --- U.S. ----, 136 S. Ct.

305, 308, 309 (2015) (per curiam)); see also Callahan v. Unified Gov’t of

Wyandotte Cty., 806 F.3d 1022, 1027 (10th Cir. 2015) (“The law is also clearly

established if the conduct is so obviously improper that any reasonable officer

would know it was illegal.”).

The Supreme Court has emphasized that the clearly-established-law inquiry

must be guided by “the specific context of the case,” Mullenix, 136 S. Ct. at 308

(quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)), particularly “in the

Fourth Amendment context, where . . . ‘[i]t is sometimes difficult for an officer to

determine how the relevant legal doctrine . . . will apply to the factual situation

the officer confronts,’” id. (alteration in original) (quoting Saucier v. Katz, 533

U.S. 194, 205 (2001), limited on other grounds by Pearson v. Callahan, 555 U.S.

223 (2009)); accord Aldaba II, 844 F.3d at 872. Indeed, the Supreme Court

recently faulted our clearly established law analysis, where we “failed to identify

a case where an officer acting under similar circumstances . . . was held to have

violated the Fourth Amendment.” White v. Pauly, --- U.S. ----, 137 S. Ct. 548,

552 (2017) (per curiam).

24
 “As a practical matter, we implement this [clearly established law] standard

by asking whether there was ‘arguable probable cause’ for an arrest—if there was,

a defendant is entitled to qualified immunity.” A.M., 830 F.3d at 1139 (alteration

in original) (quoting Kaufman, 697 F.3d at 1300). “In other words, in the § 1983

qualified-immunity context, an officer may be mistaken about whether he

possesses actual probable cause to effect an arrest, so long as the officer’s

mistake is reasonable—viz., so long as he possesses ‘arguable probable cause.’”

Id. at 1140 (quoting Cortez v. McCauley, 478 F.3d 1108, 1121 (10th Cir. 2007)

(en banc)).

Under this analytical rubric, Plaintiff must present controlling

authority—ordinarily, caselaw from the U.S. Supreme Court or our court, or, as

relevant here, New Mexico appellate courts, see, e.g., Quinn, 780 F.3d at 1005;

Felders v. Malcom, 755 F.3d 870, 884 (10th Cir. 2014); Kaufman, 697 F.3d at

1300–01—that “squarely governs the case,” Mullenix, 136 S. Ct. at 309 (quoting

Brosseau, 543 U.S. at 201); accord Aldaba II, 844 F.3d at 877, and that would

have put “beyond debate,” al-Kidd, 563 U.S. at 741; accord White, 137 S. Ct. at

551, the question of whether Defendants lacked probable cause to arrest Mr. Park

for a violation of Section 30-22-1(A) under the particular facts of this case (i.e.,

under Mr. Park’s version of the facts). We conclude that Mr. Park cannot satisfy

this burden.

25
 The “body of relevant caselaw” concerning any of the provisions of the

resisting statute in November 2010 was (and still is) “very limited.” A.M., 830

F.3d at 1143 (emphasis added). Moreover, as explicated supra, far fewer cases

mention, much less discuss, the specific provision implicated here—Section 30-

22-1(A). More importantly, no controlling decision from the United States

Supreme Court, our court, or New Mexico appellate courts “squarely governs”

whether Defendants lacked probable cause for Mr. Park’s arrest under Section 30-

22-1(A), Mullenix, 136 S. Ct. at 309 (quoting Brosseau, 543 U.S. at 201); accord

Aldaba II, 844 F.3d at 877, or places the resolution of this probable-cause

question “beyond debate,” al-Kidd, 563 U.S. at 741; accord White, 137 S. Ct. at

551. In particular, the cases from the relevant time period that we discussed

supra—including Diaz, Archuleta, Smith, and Boydston—clearly do not satisfy

this criteria. Though we determined that those cases do not support Defendants’

claim that they possessed actual probable cause for Mr. Park’s arrest, they also do

not squarely condemn that arrest under the Fourth Amendment, such that we can

conclude that Defendants lacked arguable probable cause for Mr. Park’s arrest.

Indeed, Defendants could have reasonably—but mistakenly—relied on cases like

Diaz and its progeny, and Boydston to support their arrest of Mr. Park.

At bottom, Mr. Park cannot supply “a case where an officer acting under

similar circumstances . . . was held to have violated the Fourth Amendment.”

26
White, 137 S. Ct. at 552. No decision would have “apprise[d] every objectively

reasonable officer” that he lacked probable cause under the circumstances of this

case to arrest Mr. Park. Aldaba II, 844 F.3d at 877 (emphasis added); see id. at

879 (“[Because] [w]e have found no case presenting a similar situation[,] [w]e

certainly cannot say that every reasonable officer would know that the Fourth

Amendment condemned [the officer’s specific conduct]. No case renders a

Fourth Amendment violation ‘beyond debate.’”). Consequently, although we now

conclude that Defendants lacked probable cause to arrest Mr. Park for violating

Section 30-22-1(A), we cannot determine under the particular facts of this case

that Mr. Park has carried his burden of demonstrating that Defendants’ arrest

violated clearly established law. See, e.g., Cox, 800 F.3d at 1247 (“Significantly,

[the plaintiff] has not directed our attention to any Supreme Court or Tenth

Circuit decision (published or otherwise) that would indicate that this right was

clearly established in 2009 . . . . Nor, for that matter, has [she] attempted to

shoulder her burden by showing that ‘the clearly established weight of authority

from other courts . . . ha[s] found the law to be as [she] maintains.’ On this basis

alone, we could hold that [the plaintiff] has not properly laid the groundwork to

defeat [the defendant’s] assertion of qualified immunity.” (second omission in

original) (emphasis added) (footnote omitted) (citations omitted) (quoting Becker

v. Bateman, 709 F.3d 1019, 1023 (10th Cir. 2013))); Quinn, 780 F.3d at 1007

(“Plaintiffs have not directed us to any clearly established law involving such

27
sting operations or an analogous law-enforcement setting, nor did the district

court rely on any such law. This caselaw void is significant and ultimately

determinative . . . .”). Therefore, we conclude that Defendants are entitled to

qualified immunity with respect to Mr. Park’s Fourth Amendment claim for

unlawful seizure and affirm the district court’s judgment on this alternative basis.

2

We next address Mr. Park’s Fourth Amendment excessive-force claim. In

this claim, Mr. Park contends that Defendants used greater force than necessary to

effect his arrest, by “appl[ying] a knee strike to [his] torso and forc[ing] him to

the floor with their weight on top of him.” Aplt.’s Opening Br. at 51.

In Cortez, we recently discussed the analytical framework for analyzing

“claims of both unlawful arrest and excessive force arising from a single

encounter” explaining, in that scenario, that

it is necessary to consider both the justification the officers had
for the arrest and the degree of force they used to effect it. If the
plaintiff can prove that the officers lacked probable cause, he is
entitled to damages for the unlawful arrest, which includes
damages resulting from any force reasonably employed in
effecting the arrest. If the plaintiff can prove that the officers
used greater force than would have been reasonably necessary
to effect a lawful arrest, he is entitled to damages resulting from
that excessive force. These two inquiries are separate and
independent, though the evidence may overlap.

Cortez, 478 F.3d at 1127 (emphasis added). When “officers move for qualified

immunity on an excessive force claim,” the plaintiff must show “that the force

28
used was impermissible (a constitutional violation) and that objectively

reasonable officers could not have . . . thought the force constitutionally

permissible (violates clearly established law).” Id. at 1128. In this case, we

focus our attention only on the first inquiry (i.e., a constitutional violation vel

non), ultimately concluding that Mr. Park has failed to demonstrate that

Defendants violated his Fourth Amendment rights by using excessive force.

In determining whether Defendants applied more force than would have

been reasonably necessary (assuming, as we must, that Defendants effected a

lawful arrest of Mr. Park), we consider the facts and circumstances confronting

the officers, judging “reasonableness . . . ‘from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of hindsight.’” Cavanaugh

v. Woods Cross City, 718 F.3d 1244, 1248 (10th Cir. 2013) (quoting Graham v.

Connor, 490 U.S. 386, 396 (1989)). For example, “[i]f an officer reasonably, but

mistakenly, believed that a suspect was likely to fight back, . . . the officer would

be justified in using more force than in fact was needed.” Saucier, 533 U.S. at

205. As part of the analysis, the relevant factors “include, but are not limited to,

‘[1] the severity of the crime at issue, [2] whether the suspect poses an immediate

threat to the safety of the officers or others, and [3] whether he is actively

resisting arrest or attempting to evade arrest by flight.’” Cavanaugh, 718 F.3d at

1249 (emphasis added) (quoting Graham, 490 U.S. at 396). These three

factors—first identified by the Supreme Court in Graham—are often referred to

29
as the Graham factors. See, e.g., Fisher v. City of Las Cruces, 584 F.3d 888,

894–96 (10th Cir. 2009).

The district court focused on the three Graham factors, finding that the first

two (the severity of the crime at issue and whether Mr. Park posed a threat to

Defendants’ safety) favored Mr. Park, while the third heavily favored Defendants.

On that factor, the district court specifically concluded that Mr. Park “actively

resisted his continued arrest by physically tensing up and moving his arms in an

attempt to get out of the escort hold and stay in the [l]aundromat,” at which point

“[Officers] Gaitan and Dykes could have reasonably believed that [Mr. Park] was

likely to fight back.” Aplt.’s App. at 339 (Mem. Op. & Order, filed Mar. 31,

2014). In view of those circumstances, the district court found “[Officer] Gaitan

and [Officer] Dykes were justified in using more force than was actually needed

to restrain [Mr. Park].” Id.

On appeal, Mr. Park challenges this aspect (i.e., the third factor) of the

district court’s Graham-factor analysis and claims, in any event, that the

“circumstances of [this] particular case . . . require . . . consideration of additional

factors” beyond those identified in Graham. Aplt.’s Opening Br. at 53 (quoting

Aldaba v. Pickens (Aldaba I), 777 F.3d 1148, 1155 (10th Cir.), vacated and

remanded, --- U.S. ----, 136 S. Ct. 479 (2015)). We, however, conclude that Mr.

Park’s contentions are without merit, and agree with the district court that Mr.

Park has failed to establish a constitutional violation.

30
 In particular, we believe that Graham’s third factor heavily favors

Defendants, strongly militating in favor of a determination that Defendants’ use

of force was reasonable. Under the third Graham factor (i.e., whether Mr. Park

actively resisted or attempted to evade arrest), “the relevant inquiry is whether the

[force used by the officers] was reasonable and proportionate given [the

arrestee’s] resistance.” Perea v. Baca, 817 F.3d 1198, 1203 (10th Cir. 2016); see

also Cortez, 478 F.3d at 1126 (“[T]he excessive force inquiry evaluates the force

used in a given arrest or detention against the force reasonably necessary to effect

a lawful arrest or detention under the circumstances of the case.”).

Here, the district court found that, a short time after the officers lifted him

out of his chair to arrest him, Mr. Park fought back “forcefully” by tensing his

arms, bracing his legs, and attempting to pull away from the officers. Aplt.’s

App. at 325. Indeed, Mr. Park’s own brief concedes that he “tense[d] his arms,

brace[d] his legs, and tr[ied] to pull his arms away from [the officers]” in an

attempt “to show that he did not want to leave his business.” Aplt.’s Opening Br.

at 10. In cases of physical resistance to an arrest, as here, officers may employ

the amount of force necessary to complete the arrest, see Perea, 817 F.3d at 1203;

Cortez, 478 F.3d at 1126, and—if they believe (even mistakenly) that the arrestee

will continue to fight back—they may use “more force than in fact” necessary,

Saucier, 533 U.S. at 205. Guided by the third Graham factor, and considering the

totality of the circumstances, it is patent to us that Defendants’ use of

31
force—including a knee strike to Mr. Park’s torso and taking him to the

ground—was proportional and reasonable given the nature of Mr. Park’s

“forceful[]” physical resistance. Aplt.’s App. at 325. Accordingly, like the

district court, we conclude that Mr. Park’s conduct made Defendants’ use of force

reasonable.

As to Mr. Park’s contention that the circumstances of this case obliged the

district court to look beyond the three Graham factors, we cannot properly quarrel

with the notion that the Graham inquiry may “not always give a clear answer as

to [every] particular application of force.” Saucier, 533 U.S. at 205 (“This is the

nature of a test which must accommodate limitless factual circumstances.”).

Graham itself recognizes that the excessive-force analysis is not restricted to the

three factors it identifies; instead, it “requires careful attention to the facts and

circumstances of each particular case.” 490 U.S. at 396; see Cavanaugh, 718

F.3d at 1249 (noting that the relevant considerations under Graham “include, but

are not limited to” the three identified factors). Indeed, as noted supra, in

reaching our reasonableness conclusion, we considered the totality of the

circumstances. The problem for Mr. Park is that the additional considerations

that he identifies do not undercut the reasonableness of Defendants’ use of force.

First, Mr. Park urges us to account for the fact that he “posed no obstacle to

the execution of the search warrant” when Defendants took him “to the ground.”

Aplt.’s Opening Br. at 53. Defendants, however, resorted to force because Mr.

32
Park physically resisted their arrest, not because he impeded their execution of

the search warrant. Next, Mr. Park says that our analysis here must consider his

“special characteristics” that “ma[de] him more susceptible to harm from this

particular use of force,” id. at 53–54 (quoting Aldaba I, 777 F.3d at

1156)—namely, his difficulties with English, his age, and his physical stature.

However, these factors did not justify Mr. Park’s physical resistance to his arrest

and that resistance precipitated Defendants’ use of force. We have no doubt that

this use of force was reasonable. And, under the circumstances of this case, Mr.

Park’s invocation of additional variables does not undercut that conclusion.

For the foregoing reasons, we conclude that Mr. Park has failed to

demonstrate a violation of his Fourth Amendment right to be free from excessive

force. Therefore, we conclude that Defendants are entitled to qualified immunity

on Mr. Park’s Fourth Amendment claim of excessive force, and affirm the district

court’s judgment in this respect too.

3

Next, we address Mr. Park’s argument that the district court improperly

granted summary judgment—on the basis of qualified immunity—to Officer

Gaitan on Mr. Park’s First Amendment claims.

In reviewing the district court’s judgment in the First Amendment context,

we take care “to make an independent examination of the whole record in order to

make sure that the judgment does not constitute a forbidden intrusion on the field

33
of free expression.” Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d

1192, 1201 (10th Cir. 2007) (quoting Citizens for Peace in Space v. City of Colo.

Springs, 477 F.3d 1212, 1219 (10th Cir. 2007)). Nonetheless, Mr. Park must still

overcome both prongs of the qualified-immunity analysis. Because we conclude

that Mr. Park has failed to demonstrate that Officer Gaitan violated his clearly

established First Amendment rights, we determine that the district court correctly

granted summary judgment on qualified-immunity grounds. 10

More specifically, Mr. Park has not cited any controlling authority that

would have put “every reasonable official” in Officer Gaitan’s position on notice

in November 2010 that he would be violating Mr. Park’s First Amendment rights

if he seized and retained video footage, and the equipment storing it, pursuant to a

valid search warrant. Mullenix, 136 S. Ct. at 308 (quoting Reichle v. Howards,

10
Mr. Park bases his First Amendment claim on theories of retaliation
and prior-restraint. See Brammer-Hoelter, 492 F.3d at 1202 (explaining the
“distinct” nature of claims brought under retaliation and prior-restraint theories).
Mr. Park first claims that Officer Gaitan retaliated against him by returning to his
business and arresting him, after Mr. Park initially declined to provide him with
the video footage. Mr. Park then bases his prior-restraint claim on three distinct
sets of facts: (1) the censorship of his video recordings, while his video
equipment was retained by the APD (and inaccessible to Mr. Park), (2) the
chilling effect on his future recording activity caused by the seizure of the video
recorder, and (3) the chilling effect on his future recording activity caused by
Officer Gaitan’s alleged threat that Mr. Park would go to jail if he did not hand
over his video recorder during the parties’ initial encounter. Because Mr. Park
fails to demonstrate that the underlying factual circumstances here support any
First Amendment claim under clearly established law, we need not conduct a
separate analysis as to his retaliation and prior-restraint theories.

34
566 U.S. 658, ---, 132 S. Ct. 2088, 2093 (2012)); see id. (noting that the plaintiff

must demonstrate that “the violative nature of [the] particular conduct is clearly

established” (quoting al-Kidd, 563 U.S. at 742)); accord Aldaba II, 844 F.3d at

877; see also Quinn, 780 F.3d at 1005 (“A plaintiff may satisfy [the clearly

established law] standard by identifying an on-point Supreme Court or published

Tenth Circuit decision; alternatively, ‘the clearly established weight of authority

from other courts must have found the law to be as the plaintiff maintains.’”

(emphasis added) (quoting Weise v. Casper, 593 F.3d 1163, 1167 (10th Cir.

2010))). Consequently, Mr. Park has failed to carry his burden of demonstrating

that Officer Gaitan’s conduct violated his clearly established First Amendment

rights. 11

Mr. Park does cite some Supreme Court cases, as well as one Tenth Circuit

case, in an effort to carry his burden. But they all focus on officials’ ability to

limit speech deemed to be obscene, not on an officer’s ability to inspect and seize

video-related materials from a third-party for purposes of a criminal investigation,

as we confront here. See Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 57

(1989) (determining whether “the Constitution forbids the use of obscenity

11
The district court did not rest its decision on the second prong of the
qualified-immunity standard (i.e., the clearly established law prong), and Officer
Gaitan does not pursue an argument along this line in his briefing, but “we may
affirm on any basis supported by the record, even if it requires ruling on
arguments not reached by the district court or even presented to us on appeal.”
Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011).

35
violations as predicate acts for a RICO conviction [under state law]”); Se.

Promotions, Ltd. v. Conrad, 420 U.S. 546, 547 (1975) (addressing “whether First

Amendment rights were abridged when respondents denied petitioner the use of a

municipal facility . . . for the showing of the controversial rock musical ‘Hair’”

based on their understanding that “the musical . . . involved nudity and obscenity

on stage”); Roaden v. Kentucky, 413 U.S. 496, 497 (1973) (“The question

presented in this case is whether the seizure of allegedly obscene material,

contemporaneous with and as an incident to an arrest for the public exhibition of

such material in a commercial theater, may be accomplished without a warrant.”);

Heller v. New York, 413 U.S. 483, 484 (1973) (addressing “whether a judicial

officer . . . , who has viewed a film and finds it to be obscene, can issue a

constitutionally valid warrant for the film’s seizure as evidence in a prosecution

against the exhibitor, without first conducting an adversary hearing on the issue

of probable obscenity”); Camfield v. City of Okla. City, 248 F.3d 1214, 1218

(10th Cir. 2001) (addressing the constitutionality of authorities’ seizure of a film

that they believed contained child pornography). Thus, Mr. Park has provided no

Supreme Court or Tenth Circuit authority that “squarely governs the case here,”

Mullenix, 136 S. Ct. at 309 (quoting Brosseau, 543 U.S. at 201).

Nor has Mr. Park made a permissible alternative clearly established law

showing by demonstrating that the clear weight of authority from our sister

circuits favors his specific legal position. See Quinn, 780 F.3d at 1005. Rather,

36
he cites cases that generally discuss citizens’ First Amendment rights to record

law enforcement officers’ activities without fear of arrest or prosecution, not the

specific kind of conduct at issue here. For example, in Glik v. Cunniffe, which

Mr. Park cites, officers arrested the plaintiff for violating a state wiretap statue

after recording officers without their consent. 655 F.3d 78, 79–80 (1st Cir. 2011).

The First Circuit held that the recording constituted protected First Amendment

activity, because citizens have “a constitutionally protected right to videotape

police carrying out their duties in public.” Id. at 82 (answering the “fairly

narrow” constitutional question “unambiguously in the affirmative”). Thus, Glik

makes clear to officers that arresting a person based on his recording of them

violates that person’s First Amendment rights under certain circumstances, but

Glik offers little, if any, guidance to every reasonable officer in Defendants’

position regarding when his seizure and retention of video recordings and the

equipment housing them, pursuant to a valid search warrant, would run afoul of a

person’s First Amendment rights. The other cases from other circuits that Mr.

Park identifies similarly stand on a distant shore from this case; they are factually

distinct to say the least. See Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d

583 (7th Cir. 2012); Jean v. Mass. State Police, 492 F.3d 24 (1st Cir. 2007);

Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000); Fordyce v. City of

Seattle, 55 F.3d 436 (9th Cir. 1995).

For the foregoing reasons, we conclude that Mr. Park has failed to

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demonstrate that Officer Gaitan violated his clearly established First Amendment

rights; consequently, Officer Gaitan is entitled to qualified immunity on Mr.

Park’s First Amendment claims. We affirm the district court’s judgment in this

respect.

B

We now turn our attention to Mr. Park’s state-law claims for false

imprisonment, false arrest, assault and battery. The district court granted

summary judgment to Defendants on all four claims; Mr. Park argues on appeal

that the court erred as to each. “We review a district court’s grant of summary

judgment de novo, using the same standards applied by the district court.”

Fuerschbach v. Sw. Airlines Co., 439 F.3d 1197, 1207 (10th Cir. 2006)

(quoting Baca v. Sklar, 398 F.3d 1210, 1216 (10th Cir. 2005)). “The court shall

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). As explained below, contrary to the district court, we

conclude that Defendants are not entitled to summary judgment on Mr. Park’s

false imprisonment and false arrest claims, but we agree with the court’s entry of

summary judgment in Defendants’ favor regarding Mr. Park’s assault and battery

claims.

Beginning with the first two claims, we have previously explained that

“[u]nder New Mexico law, ‘false imprisonment consists of intentionally confining

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or restraining another person without his consent and with knowledge that he has

no lawful authority to do so.’” Fuerschbach, 439 F.3d at 1207 (quoting Romero

v. Sanchez, 895 P.2d 212, 215 (N.M. 1995)). False arrest, a closely related claim,

“occurs when the ‘facts available to [a] detaining officer would [not] warrant [a]

person of reasonable caution to believe detention appropriate.’” Id. (alterations in

original) (quoting Sanchez, 895 P.2d at 215). Additionally, “[a] defendant

possessed of a good faith and reasonable belief in the lawfulness of the action is

not liable for false imprisonment or false arrest”; such a defense “ordinarily

requires a showing of probable cause.” Id. at 1207–08 (emphasis added) (citing

State v. Johnson, 930 P.2d 1148, 1154 (N.M. 1996); Perea v. Stout, 94 N.M. 595,

613 (N.M. 1980)). Because the district court concluded in its analysis of Mr.

Park’s unlawful seizure claim that Defendants had probable cause for Mr. Park’s

arrest, it accordingly found that they had a good-faith defense to Mr. Park’s false

imprisonment and false arrest claims.

On appeal, Mr. Park argues that the district court erred in finding that

Defendants had probable cause for purposes of these state-law claims, just as the

court erred in reaching a like conclusion for purposes of the Fourth Amendment

unlawful seizure claim. Defendants, in turn, rely on their earlier argument that

they had probable cause to detain and arrest Mr. Park because they reasonably

believed he had unlawfully resisted an officer under Section 30-22-1(A).

We reject Defendants’ argument here for essentially the same reasons we

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rejected like contentions supra regarding Mr. Park’s Fourth Amendment unlawful

seizure claim. As we indicated there, Defendants did not have probable cause to

arrest Mr. Park for violating Section 30-22-1(A) of the resisting statute. We will

not repeat that probable-cause analysis here. Suffice it to say, that it follows

ineluctably from that analysis that any good-faith defense as to these claims

would fail. We accordingly reverse the district court’s grant of summary

judgment to Defendants on these claims.

Turning to Mr. Park’s assault and battery claims, we agree with the district

court that Defendants are entitled to summary judgment. Under New Mexico law,

“[f]or there to be an assault, there must have been an ‘act, threat or menacing

conduct which causes another person to reasonably believe that he is in danger of

receiving an immediate battery.’” Fuerschbach, 439 F.3d at 1208 (quoting N.M.

Stat. Ann. § 30-3-1(B)). “Battery occurs when an individual ‘acts intending to

cause a harmful or offensive contact with the person of the other or a third

person, or an imminent apprehension of such a contact, and . . . an offensive

contact with the person of the other directly or indirectly results.” Id. at 1208–09

(omission in original) (quoting State v. Ortega, 827 P.2d 152, 155 (N.M. 1992)).

The district court, relying on an unpublished decision from our court, noted

that a law enforcement officer can be held liable for assault and battery only when

the officer “uses more than necessary force to restrain a person.” Aplt.’s App. at

341 (citing Reynaga v. Cty. of Bernalillo, 64 F.3d 670 (10th Cir. 1995)

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(unpublished table decision)). Because the district court concluded in its Fourth

Amendment analysis that Defendants did not employ unconstitutionally excessive

force in effectuating Mr. Park’s arrest, the district court found (guided by

Reynaga) that they could not be liable for assault and battery under New Mexico

law.

We agree with the district court’s conclusion and, in this regard, note that

we are persuaded by the panel’s reasoning in Reynaga. See, e.g., 10th Cir. R.

32.1(A) (“Unpublished decisions are not precedential, but may be cited for their

persuasive value.”); United States v. Scott, 529 F.3d 1290, 1299 n.9 (10th Cir.

2008) (same). Its holding appears to have accurately captured the import of New

Mexico law. See State v. Gonzales, 642 P.2d 210, 213 (N.M. Ct. App. 1982)

(“Officers, within reasonable limits, are the judges of the force necessary to

enable them to make arrests . . . . When acting in good faith, the courts will

afford them the utmost protection, and they will recognize the fact that

emergencies arise [in the course of an arrest].” (quoting Mead v. O’Connor, 344

P.2d 478 (N.M. 1959)); State v. Kraul, 563 P.2d 108, 112–13 (N.M. Ct. App.

1977) (noting that officers are entitled to use force necessary to effectuate an

arrest, even an unlawful one).

As noted above in our excessive-force analysis, even construing the facts in

Mr. Park’s favor, we cannot conclude that Defendants used more force than

reasonably necessary to effectuate Mr. Park’s arrest. Now, guided by Reynaga

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and related New Mexico authorities, we conclude that Defendants are entitled to

summary judgment on Mr. Park’s assault and battery claims. See Reynaga, 64

F.3d 670, at *2 (applying New Mexico law and noting that an officer may not be

held liable in connection with the use of “reasonable force” to effect an arrest).

Accordingly, we affirm the district court’s grant of summary judgment to

Defendants on Mr. Park’s assault and battery claim.

IV

For the foregoing reasons, we AFFIRM the district court’s judgment as to

(1) Mr. Park’s Fourth Amendment claims of unlawful seizure and excessive force;

(2) his First Amendment claims; and (3) his state-law claims for assault and

battery. However, we REVERSE the district court’s judgment as to Mr. Park’s

state-law claims for false imprisonment and false arrest, and REMAND the case

to the district court for further proceedings consistent with this order and

judgment.

ENTERED FOR THE COURT

Jerome A. Holmes
Circuit Judge

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