FILED
United States Court of Appeals
Tenth Circuit
February 23, 2012
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
STEVEN A. ROMERO,
Plaintiff-Appellee,
v. No. 11-2139
JEREMY STORY, MANUEL FRIAS,
and VINCENT SHADD, individually
and in their official capacities as Law
Enforcement Officers for the Las
Cruces Police Department,
Defendants-Appellants,
and
CITY OF LAS CRUCES,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. 2:10-CV-00591-RB-LAM)
Russell Dean Clark, Las Cruces, New Mexico, for Plaintiff-Appellee.
David P. Lutz (William L. Lutz with him on the brief), Martin, Lutz, Roggow, &
Eubanks, P.C., Las Cruces, New Mexico, for Defendants-Appellants.
Before KELLY, BALDOCK, and TYMKOVICH, Circuit Judges.
BALDOCK, Circuit Judge.
Plaintiff Steven A. Romero brought this action against Defendants Jeremy
Story, Manuel Frias, and Vincent Shadd, Las Cruces, New Mexico law enforcement
officers, alleging unlawful arrest and excessive force in violation of 42 U.S.C.
§ 1983. 1 The district court denied Defendants’ claim to qualified immunity in the
context of summary judgment, and Defendants appealed. Exercising jurisdiction
pursuant to 28 U.S.C. § 1291, we affirm the district court’s denial of summary
judgment as to unlawful arrest, vacate the district court’s denial of summary
judgment as to excessive force, and remand.
I.
Qualified immunity shields government officials “from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (internal quotations omitted). But before turning
to the merits, we must address our jurisdiction over this appeal. Our jurisdiction
extends to “final decisions” of the district courts. 28 U.S.C. § 1291. Although
orders denying summary judgment are ordinarily not appealable, a decision of a
district court is appealable if it falls within “that small class which finally determine
claims of right separable from, and collateral to, rights asserted in the action, too
1
Plaintiff also sued Defendant City of Las Cruces for municipal liability and
the individual defendants for violations of state tort law. The present appeal
involves only the civil rights claims against the law enforcement officers and does
not include the state law claims or the claims against the City of Las Cruces.
2
important to be denied review and too independent of the cause itself to require that
appellate consideration be deferred until the whole case is adjudicated.” Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). Thus, “[a]n appealable
interlocutory decision must . . . conclusively determine the disputed question and
that question must involve a claim of right separable from, and collateral to, rights
asserted in the action.” Mitchell v. Forsyth, 472 U.S. 511, 527 (1985) (internal
quotations and citation omitted). The Supreme Court has told us “the denial of a
defendant’s motion for . . . summary judgment on the ground of qualified immunity
easily meets these requirements.” Id. Accordingly, “we have interlocutory
jurisdiction over denials of qualified immunity at the summary judgment stage to the
extent that they ‘turn[] on an issue of law.’” Fogarty v. Gallegos, 523 F.3d 1147,
1153 (10th Cir. 2008) (citing Mitchell, 472 U.S. at 530).
But the scope of our review is limited. We “simply take, as given, the facts
that the district court assumed when it denied summary judgment.” Johnson v.
Jones, 515 U.S. 304, 319 (1995). Accordingly, “we may review whether the set of
facts identified by the district court is sufficient to establish a violation of clearly
established constitutional right, but we may not consider whether the district court
correctly identified the set of facts that the summary judgment record is sufficient
to prove.” See Forbes v. Township of Lower Merion, 313 F.3d 144, 147 (3d Cir.
2002) (Alito, J.) (internal quotations omitted). In other words, “[a]n order denying
summary judgment based on qualified immunity necessarily involves a legal
3
determination that certain alleged actions violate clearly established law. Defendants
may therefore assert on appeal that all of the conduct which the District Court
deemed sufficiently supported for purposes of summary judgment meets the
applicable legal standards.” Medina v. Cram, 252 F.3d 1124, 1130 (10th Cir. 2001)
(internal quotations and citation omitted). “Within this limited jurisdiction, we
review de novo the district court’s denial of a summary judgment motion asserting
qualified immunity. Dodds v. Richardson, 614 F.3d 1185, 1192 (10th Cir. 2010)
(internal quotations omitted).
II.
The district court based its qualified immunity decision on the following set
of facts. Aaron Diaz heard a loud noise emanating from outside his apartment. He
ventured outside to investigate and noticed someone had vandalized his automobile.
Diaz observed a Hispanic male in the same parking lot as his automobile. Diaz
called law enforcement twice—initially to report the vandalism, and later to report
the same Hispanic male he saw earlier in the parking lot had entered Apartment 17.
The defendant officers responded. Upon Defendants’ arrival, Diaz again commented
the Hispanic male had entered Apartment 17. Defendants subsequently knocked on
the door to Apartment 17. Plaintiff, a Hispanic male, opened the door and took one
or two steps outside the apartment. Defendants told Plaintiff to take his hands from
his pockets. Plaintiff complied. Plaintiff, not understanding why law enforcement
knocked on the door, turned back toward the apartment and proceeded one or two
4
steps. Defendant Story grabbed Plaintiff from behind to prevent Plaintiff’s entry into
the apartment. Another defendant officer simultaneously performed a leg sweep,
causing Plaintiff to hit the ground. 2 As a result of the fall, Plaintiff chipped a tooth
and cut his lip. Defendants handcuffed Plaintiff and placed him under arrest.
Plaintiff brought suit alleging Defendants unlawfully arrested him and used
excessive force while executing that arrest, both in violation of the Fourth
Amendment. Defendants filed a motion for summary judgment as to Plaintiff’s civil
rights claims, arguing they were entitled to qualified immunity. In the district court,
Defendants maintained they had probable cause to arrest Plaintiff based on his
“flight” and “evasion,” pursuant to N.M. Stat. Ann. § 30-22-1(B). 3 That statute
provides: “Resisting, evading or obstructing an officer consists of . . . intentionally
fleeing, attempting to evade or evading an officer of [New Mexico] when the person
committing the act of fleeing, attempting to evade or evasion has knowledge that the
2
The district court’s recitation of the facts does not make clear who performed
the leg sweep. The district court initially stated Defendant Frias stayed in the
parking lot by the van while Defendants Story and Shadd went to the apartment, but
later, the district court stated Frias performed the leg sweep that caused Plantiff to
hit the ground.
3
In an affidavit, Plaintiff disputes Defendants’ factual contention regarding
the alleged reentry into the apartment. In that affidavit, Plaintiff attests he did not
flee the police. Plaintiff states he initially stepped outside the front door “a foot or
two and stepped back inside almost immediately” to tell the occupant of the
apartment the police were outside. This factual dispute, however, does not impact
our review on appeal because, as stated above, we “simply take, as given, the facts
that the district court assumed when it denied summary judgment.” Johnson, 515
U.S. at 319.
5
officer is attempting to apprehend or arrest him.” N.M. Stat. Ann. § 30-22-1(B).
Additionally, Defendants contended they had reasonable suspicion to detain a
Hispanic male in Apartment 17 in connection with the vandalism because of Diaz’s
identification. As to excessive force, Defendants argued they employed force for
officer safety reasons. Moreover, they contended a leg sweep is not excessive force
to prevent a person from resisting or evading arrest.
The district court denied Defendants’ motion for summary judgment on the
basis of qualified immunity. The court first held Defendants violated Plaintiff’s
constitutional right to be free from arrest without probable cause. The district court
stated that under N.M. Stat. Ann. § 30-22-1(B), law enforcement must “reasonably
believe that there existed a lawful basis to apprehend or arrest [Plaintiff], unrelated
to the flight.” Aplt. App. at 110. The court then examined whether Defendants had
reasonable suspicion to detain Plaintiff in connection with the vandalism. The court
stated Defendants were informed only that: “(1) a Hispanic male had been sighted
in the vicinity of a vandalized car; and (2) that Hispanic male was, at the time the
police arrived, located in Apartment No. 17.” Id. at 111. The district court
concluded Plaintiff’s mere presence at the scene of a past crime did not support a
reasonable suspicion Plaintiff had committed the vandalism. Because the district
court held Defendants lacked reasonable suspicion to apprehend Plaintiff before he
turned around to enter Apartment 17, the court did not reach the parties’ arguments
concerning whether Plaintiff’s behavior constituted flight or evasion. The district
6
court further held the outcome of Plaintiff’s excessive force claim depended on the
outcome of his unlawful arrest claim. Therefore, because the district court concluded
a dispute of material fact existed regarding Plaintiff’s unlawful arrest claim, the
court believed it could not evaluate whether the force used in connection with that
arrest was excessive and denied qualified immunity on that claim.
III.
Having determined our jurisdiction over this action and examined the facts the
district court relied on in denying qualified immunity, we turn to the merits. Once
a defendant asserts the doctrine of qualified immunity, “the plaintiff bears the burden
of satisfying a strict two-part test.” Dodds, 614 F.3d at 1191 (internal quotations
omitted). The plaintiff must show: “(1) that the defendant violated a constitutional
or statutory right, and (2) that this right was clearly established at the time of the
defendant’s conduct. . . .” Id. (internal quotations omitted).
On appeal, Defendants focus solely on the question of whether they had
reasonable suspicion to investigate Plaintiff for vandalism. 4 They contend the
district court relied on inapposite cases in reaching its decision and erred by not
4
Oddly enough, Defendants on appeal do not address probable cause for the
arrest, even though they argued to the district court Plaintiff’s flight provided
probable cause to arrest Plaintiff. Presumably, Defendants believe if we reverse the
district court’s reasonable suspicion determination, probable cause would have
existed to justify an arrest pursuant to N.M. Stat. Ann. § 30-22-1(B) based on
Plaintiff’s alleged flight. The district court, however made no determination as to
whether Plaintiff attempted to flee or evade Defendants.
7
examining Plaintiff’s alleged flight and evasion in conducting its reasonable
suspicion analysis. Moreover, Defendants posit Diaz’s tip—that a Hispanic male in
Apartment 17 was in the parking lot at the time of a specific crime—provided the
officers with reasonable suspicion because Diaz’s tip was spatially specific, correct
in identifying the race of Plaintiff, and non-anonymous. Defendants further argue
the district court’s result provides police no recourse to interview a potential suspect
to a crime. Finally, Defendants believe the district court misapplied circuit
precedent in concluding it could not conduct an independent inquiry for Plaintiff’s
excessive force claim.
Plaintiff, on the other hand, maintains the district court correctly held
Defendants lacked reasonable suspicion to initiate a stop of Plaintiff. Plaintiff
contends whether Diaz’s tip was anonymous does not impact our analysis. Rather,
he suggests the “bottom line” is that law enforcement knew only a Hispanic male
was near the scene of an alleged car vandalism. Plaintiff does not quarrel with the
proposition that a person’s geographical and temporal proximity to a crime, taken
together with other factors, may give rise to reasonable suspicion. But he argues his
race, apart from any other information known to Defendants, clearly could not create
reasonable suspicion. Plaintiff further argues we should not remand this case to the
district court for an independent examination of Plaintiff’s excessive force claim
because the record clearly indicates the force used against Plaintiff was unreasonable
under the circumstances. We first address whether Defendants are entitled to
8
qualified immunity on Plaintiff’s unlawful arrest claim before proceeding to the issue
of excessive force.
A.
The Supreme Court has granted us the latitude to address the two-part
qualified immunity test in any order we choose. Pearson, 555 U.S. at 236. We begin
with whether Defendants violated Plaintiff’s federally protected right to be free from
unlawful arrest. 5 An arrest, for purposes of the Fourth Amendment, is a seizure,
which occurs “only when, by means of physical force or a show of authority, [an
individual’s] freedom of movement is restrained.” Fogarty, 523 F.3d at 1155
(internal quotations omitted). In this case, Defendants do not dispute they arrested
Plaintiff. Moreover, the district court, in reviewing the facts, stated Defendants took
Plaintiff down and handcuffed him. Defendants did not have a warrant to arrest
Plaintiff. “Their warrantless arrest of [Plaintiff] therefore violates the Fourth
Amendment unless that arrest was supported by probable cause.” Id. at 1156. In the
qualified immunity context, we undertake “an independent and objective” evaluation
of the existence of probable cause based upon the facts found by the district court,
considering whether those facts “are sufficient in themselves to warrant a man of
reasonable caution in the belief that an offense has been or is being committed.” Id.
(internal quotations omitted). Therefore, we must determine “which crime, or
5
Plaintiff labeled his claim “Unreasonable Seizure.” However, in that section
of his Complaint, Plaintiff refers to the alleged unlawful or illegal “arrest.”
9
crimes, defendants could objectively and reasonably have believed that [Plaintiff]
committed.” Id.
Viewing the facts in the light most favorable to Plaintiff, the district court
indicated Defendants knew only two facts when they knocked on Plaintiff’s door:
“(1) a Hispanic male had been sighted in the vicinity of a vandalized car; and (2) that
Hispanic male was, at the time the police arrived, located in Apartment No. 17.”
Aplt. App. at 111. Those facts certainly did not give rise to probable cause to arrest
Plaintiff for the vandalism of Diaz’s automobile. Defendants acknowledge this.
Instead, Defendants argued to the district court they had reasonable suspicion to
investigate Plaintiff for the vandalism and probable cause to arrest Plaintiff based on
his flight.
1.
Defendants contended below that New Mexico’s resisting, evading or
obstructing an officer statute provided the authority to arrest Plaintiff for his alleged
flight. N.M. Stat. Ann. § 30-22-1(B). But that statute applies only where law
enforcement officers have reasonable suspicion or probable cause to apprehend or
arrest a person prior to the flight. This rule derives from the statute’s language that
Plaintiff must have attempted to flee or evade with the knowledge Defendants were
attempting to apprehend or arrest Plaintiff. New Mexico v. Gutierrez, 162 P.3d 156,
168 (N.M. 2007). The New Mexico Supreme Court has told us that “if a reasonable
person would not have understood he was not free to leave, Defendant could not . . .
10
be punished for evading and eluding an officer simply because he exercised his
constitutional right to walk away from the officer and end the encounter.” Id. At a
minimum, an officer’s intention to initiate an investigatory detention supported by
reasonable suspicion followed by the suspect’s flight is necessary to justify an arrest
under the New Mexico statute: “[A] person who walks away from an officer
attempting to detain that person based on reasonable suspicion can be charged with
evading and eluding an officer under Section 30-22-1(B).” Id. at 167. Therefore,
to discern whether Defendants had probable cause to arrest Plaintiff for flight under
the New Mexico statute, we must determine whether Defendants had any grounds for
reasonable suspicion prior to Plaintiff’s alleged flight. Accordingly, we turn to the
question of whether Defendants had reasonable suspicion to detain Plaintiff for the
vandalism of Diaz’s automobile.
2.
An investigative detention is a “Fourth Amendment seizure[] of limited scope
and duration requiring reasonable suspicion of criminal activity.” Lundstrom v.
Romero, 616 F.3d 1108, 1120 (10th Cir. 2010). “An officer who ‘stops’ and briefly
detains a person for questioning ‘must be able to point to specific and articulable
facts which, taken together with rational inferences from those facts, reasonably
warrant that intrusion.’” United States v. Davis, 94 F.3d 1465, 1468 (10th Cir. 1996)
(citing Terry v. Ohio, 392 U.S. 1, 21 (1968)). Reasonable suspicion does not rise to
the level of probable cause, but “it does demand something more than an inchoate
11
and unparticularized suspicion or hunch.” Id. (internal quotations omitted).
In determining Defendants lacked reasonable suspicion to detain Plaintiff, the
district court relied on our holding in United States v. Davis, 94 F.3d 1465 (10th Cir.
1996) to conclude reasonable suspicion does not arise when an officer knows only
a man was in a parking lot at the time of a vandalism. In Davis, law enforcement
officers in a marked police car observed an automobile with four occupants parked
just north of a “juice joint,” a business that sells liquor without a license. Id. at
1467. Davis exited his car and made eye contact with a law enforcement officer,
broke eye contact, and then began walking toward the juice joint with his hands in
his pockets. Id. The law enforcement officer knew Davis was an ex-convict who
had been acquitted of a gang-related homicide and that Davis was associated with a
gang. Id. The officer also had received information Davis had been selling
narcotics. Id. But none of the officer’s prior contact with criminal activity in the
area of the juice joint had involved Davis. Id. We held none of these factors,
standing alone or taken together, provided the officer with “a particularized and
objective basis for suspecting the person stopped of criminal activity.” Id. at 1468
(internal quotations omitted).
Defendants suggest our holding in Davis is distinguishable. In support,
Defendants argue the law enforcement officers in Davis were not investigating a
specific crime and did not have a non-anonymous tip. Defendants believe our
holding in United States v. Sanchez, 519 F.3d 1208 (10th Cir. 2008), is on point. In
12
Sanchez, a woman driving a van flagged down two law enforcement officers. Id. at
1211. The woman “was very excited” and told the officers she had seen a man in a
gray shirt striking a woman in the face at a nearby intersection. Id. The officers
immediately drove to the intersection, which was one block away. Id. They
observed a blue sedan and a white van pulling away quickly from a house. Id.
Neighbors at the scene were pointing to the two vehicles “as if to say ‘that’s them.’”
Id. Even though the tip was anonymous, we held the officers had reasonable
suspicion to stop the suspects who pulled away from the alleged scene of the crime.
We reasoned that the tip was not overly general because the woman in the van
described an aspect of the assailant’s clothing and because her tip was spatially
specific. Id. at 1214. We also concluded the fact the automobiles were speeding
away while a number of people pointed to those vehicles was “significant.” Id. at
1214–15.
Although neither Davis nor Sanchez is directly on point, we find Davis to be
more analogous to the present case. In Sanchez, we had facts before us of: (1) a
positive, direct identification of an assailant committing a crime; (2) two vehicles
quickly departing from the crime scene; and (3) corroboration of the tip by
identifiable neighbors pointing to the departing vehicles. We have none of those facts
in the present case. Rather, here, Diaz did not observe Plaintiff committing any
crime. Moreover, the record before us is not clear as to where Diaz saw Plaintiff in
the parking lot in relation to Diaz’s automobile. We agree with Defendants that our
13
holding in Davis did not foreclose an officer from developing reasonable suspicion
based on the suspect’s location at the scene of a crime. But Plaintiff’s temporal and
geographic proximity to the crime alone is not sufficient in this case to provide
Defendants with reasonable suspicion. 6 “A police officer cannot legally detain a
person simply because criminal activity is afoot. The particular person that is
stopped must be suspected of criminal activity.” United States v. Fisher, 597 F.3d
1156, 1158–59 (10th Cir. 2010).
3.
Here, Defendants did not have a particularized and objective basis to detain
Plaintiff. This case involves the sole fact of a Hispanic male in a parking lot where
an unwitnessed vandalism had occurred. The vandalism occurred during the day.
6
Every case Defendants cite for their argument that being at the crime scene
provides an officer with reasonable suspicion found temporal and geographic
proximity to be one of several factors, which considered in the totality of the
circumstances, provided the officers in those situations with reasonable suspicion.
In United States v. Brown, 334 F.3d 1161, 1166–67 (D.C. Cir. 2003), the alleged
crime occurred late at night in a high crime area where gunshots had been fired from
one of two cars in a parking lot. Moreover, the suspect exited one of those cars,
watched the officers, then disappeared down an alley. Id. In United States v.
Wimbush, 337 F.3d 947, 950 (7th Cir. 2003), an officer halted a vehicle based on a
general dispatch report. In addition to the report, the officer relied on the fact the
defendant in that case was driving a purple sport utility vehicle with shiny rims, the
same vehicle the suspect reportedly drove. Id. Moreover, the shooting at issue in
that case occurred minutes earlier, just eight blocks away from the stop. Id. Finally,
in United States v. Raino, 980 F.2d 1148, 1150 (8th Cir. 1992), the facts included
shots fired late at night where the suspect’s car was parked. At the scene, the
suspect’s car was double parked. Id. As the officers approached the vehicle, the
suspect slowly pulled away and when the officer shined a spotlight on the suspect’s
face, he appeared to be nervous. Id.
14
According to the district court, Defendants relied on no factors other than Plaintiff’s
presence in the parking lot for their reasonable suspicion determination. Defendants
argue the district court needed to look at more facts, specifically Plaintiff’s “fleeing”
and “evading.” Defendants thus appear to misunderstand the district court’s holding.
The district court did not reach the issue of flight or evasion because that was the
officers’ stated reason for the arrest pursuant to the New Mexico statute. The
district court said reasonable suspicion or probable cause must have existed for some
separate offense. Even if Defendants do understand the district court’s holding, but
still believe the district court should have looked to flight and evasion in its
reasonable suspicion analysis regardless, we must take only the facts the district
court used in a light most favorable to Plaintiff. Medina, 252 F.3d at 1130. “When
a defendant argues that a trial judge erred . . . because the judge was mistaken as to
the facts that are subject to genuine dispute, the defendant’s argument cannot be
entertained under the collateral-order doctrine but must instead await an appeal at the
conclusion of the case.” Forbes, 313 F.3d at 147–48. Accordingly, we cannot
consider flight or evasion in our reasonable suspicion analysis in this appeal.
Defendants also believe the fact the tip was non-anonymous weighs in their
favor. But regardless of whether the tip was anonymous, the officers must have had
more than a hunch. See Davis, 94 F.3d at 1468. A person of a particular race
standing in a parking lot where a crime occurred is not enough to create reasonable
suspicion. See Fisher, 597 F.3d at 1158–59. Here the district court did not have
15
facts before it of flight from the parking lot, nervous behavior, or any other factors,
that if examined with the tip, would create reasonable suspicion under the totality of
the circumstances. Accordingly, we hold Defendants lacked reasonable suspicion to
detain Plaintiff in connection with the vandalism of Diaz’s automobile.
Defendants believe our holding will “give the police no recourse to interview
a potential suspect to a crime.” In response to this argument, we need only to look
to the Constitution. The Fourth Amendment protects “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures.” U.S. Const. amend. IV. A citizen has the constitutional right to walk
away from a law enforcement officer who lacks probable cause or reasonable
suspicion to detain or seize him or her. See Kentucky v. King, 131 S.Ct. 1849, 1862
(2011). The Supreme Court has told us that when law enforcement officers knock
on a door without a search warrant and the occupant makes the decision to open the
door and speak to the officers, the occupant “may refuse to answer any questions at
any time.” Id. This holding is unremarkable and certainly not novel. If the officers
want to force a suspect to speak, they must have reasonable suspicion or probable
cause. The Constitution mandates no less. Because we hold Defendants lacked
reasonable suspicion to detain Plaintiff for the vandalism, Defendants lacked
probable cause to arrest Plaintiff for flight or evasion under N.M. Stat. Ann. § 30-22-
1(B), thereby violating Plaintiff’s constitutional right to be free from unlawful
16
arrest. 7
B.
Even though we hold Plaintiff has alleged a constitutional violation for
unlawful arrest, Plaintiff still must show Defendants violated a clearly established
constitutional right. Fogarty, 523 F.3d at 1158. “[F]or a right to be clearly
established, there must be a Supreme Court or Tenth Circuit decision on point, or the
clearly established weight of authority from other courts must have found the law to
be as the plaintiff maintains.” Cortez v. McCauley, 478 F.3d 1108, 1114–15 (10th
Cir. 2007) (en banc). Even in novel factual circumstances, “officials can still be on
notice that their conduct violates established law.” Id. Our “relevant, dispositive
inquiry” for this prong “is whether it would be clear to a reasonable officer that his
conduct was unlawful.” Fogarty, 523 F.3d at 1155 (internal quotations omitted). In
other words, “the contours of the right” must be “sufficiently clear that a reasonable
official” would understand that what he is doing violates that right. Dodds, 614 F.3d
at 1206.
“In the context of an unlawful arrest our analysis is simple, for the law was
7
Plaintiff argues “[d]ragging [Plaintiff] from the apartment, without a warrant
or probable cause and exigent circumstances, clearly violated his Fourth Amendment
protection under Payton v. New York”, 445 U.S. 573 (1980). In Payton, the Supreme
Court held law enforcement officers may not enter a home without consent to make
a warrantless arrest even where probable cause exists, absent exigent circumstances.
Id. at 576. Because Plaintiff raises this argument for the first time on appeal, we do
not consider it and leave the argument for the district court to determine. Katz v.
Gerardi, 655 F.3d 1212, 1217 n.3 (10th Cir. 2011).
17
and is unambiguous: a government official must have probable cause to arrest an
individual.” Fogarty, 523 F.3d at 1158–59 (internal quotations omitted). New
Mexico Statute Annotated § 30-22-1(B) is equally unambiguous: an officer must
have probable cause or reasonable suspicion of a crime prior to the flight in order
to arrest a person for flight or evasion. Gutierrez, 162 P.3d at 166. Accordingly,
“well-settled constitutional and state-law precedent would have put reasonable
officers on notice that they lacked probable cause to effectuate an arrest.” Fogarty,
523 F.3d at 1159.
IV.
Having determined the district court properly denied Defendants qualified
immunity as to Plaintiff’s unlawful arrest claim, we must now move to Plaintiff’s
excessive force claim. The district court did not decide the excessive force claim.
Instead, the court interpreted our precedent to hold that the outcome of an excessive
force claim depends on the outcome of an unlawful arrest claim. The court stated:
“Because there is a dispute of material fact with regard to whether Plaintiff’s arrest
was lawful, the Court cannot evaluate whether the force used in connection with that
arrest was excessive.” Aplt. App. at 113–14. But this was a misreading of our case
law.
We have held that where, as here, a case involves “claims of both unlawful
arrest and excessive force arising from a single encounter,” the district court must
“consider both the justification the officers had for the arrest and the degree of force
18
they used to effect it.” Cortez, 478 F.3d at 1127 (emphasis added). In Cortez, we
emphasized the inquiries regarding unlawful arrest and excessive force are “separate
and independent, though the evidence may overlap.” Id. In application, a plaintiff
may argue law enforcement officers unlawfully arrested him. If the plaintiff
successfully proves his case, “he is entitled to damages for the unlawful arrest, which
includes damages resulting from any force reasonably employed in effecting the
arrest.” Id. (emphasis added). If the plaintiff also alleges excessive force, the
district court must conduct a separate and independent inquiry regardless of whether
the plaintiff’s unlawful arrest claim is successful. Id. And if the district court
concludes the arrest was unlawful, the court may not automatically find any force
used in effecting the unlawful arrest to be excessive. Instead, the district court must
then analyze the excessive force inquiry under the assumption the arrest was lawful. 8
As we said in Cortez:
[T]he excessive force inquiry evaluates the force used in a given arrest
or detention against the force reasonably necessary to effect a lawful
8
While this analysis may appear merely academic, the distinction is crucial.
If a plaintiff pleads unlawful arrest, but fails to plead excessive force, he is entitled
to reasonable damages from the unlawful arrest, but not damages from any excessive
force employed. This is because the claims of unlawful arrest and excessive force
are separate and independent. In the case before us, Plaintiff pled excessive force
and unlawful arrest separately. Therefore, if Defendants’ use of force in effecting
Plaintiff’s unlawful arrest is found to be reasonable, Plaintiff recovers his damages
under his unlawful arrest claim. If Plaintiff proves Defendants’ use of force in
effecting Plaintiff’s arrest was excessive, Plaintiff recovers damages for any
excessive force in addition to the damages he received for the reasonable force
employed in executing his unlawful arrest.
19
arrest or detention under the circumstances of the case. Thus, in a case
where police effect an arrest without probable cause or a detention
without reasonable suspicion, but use no more force than would have
been reasonably necessary if the arrest or the detention were
warranted, the plaintiff has a claim for unlawful arrest or detention but
not an additional claim for excessive force.
Cortez, 478 F.3d at 1126 (emphasis added). If successful in proving his excessive
force claim, the plaintiff “is entitled to damages resulting from that excessive force.”
Id. at 1127 Accordingly, “[t]he plaintiff might succeed in proving the unlawful
arrest claim, the excessive force claim, both, or neither.” Id.
Plaintiff argues we should find excessive force and deny qualified immunity
on that claim rather than remand to the district court for an independent examination
of Plaintiff’s excessive force claim. He relies on Swoboda v. Kubach, 992 F.2d 286
(10th Cir. 1993). In that case, we stated the well established rule that we may affirm
the district court for reasons other than those relied on by the district court as long
as those reasons find support in the record. Id. at 291. We do not believe that to be
the appropriate course in this case. The district court stated Defendants were not
entitled to qualified immunity on the excessive force claim. The court reached that
conclusion by stating it could not evaluate whether the force used in connection with
that arrest was excessive. Because the district court did not even evaluate whether
the force was excessive, we vacate the denial of qualified immunity as to Plaintiff’s
excessive force claim and remand to the district court to evaluate the excessive force
claim separate and independent from the unlawful arrest claim.
20
For the above stated reasons, the decision of the district court is—
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
21