FILED
United States Court of Appeals
Tenth Circuit
December 17, 2012
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
WESLEY T. MOORE,
Plaintiff - Appellee,
v. No. 12-6022
(W.D. Okla.)
DANIEL GODSIL, (D.C. No. 11-CV-00086-M)
Defendant - Appellant,
and
CITY OF OKLAHOMA CITY,
Defendant.
_________________________________
ORDER AND JUDGMENT*
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Before KELLY and HOLMES, Circuit Judges, and MARTÍNEZ, District Judge.**
_______________________________
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable William J. Martínez, U.S. District Judge, District of Colorado,
sitting by designation.
Defendant-appellant Daniel Godsil (“defendant”) brings this interlocutory appeal
from the district court’s denial of his motion for summary judgment based on qualified
immunity in this 42 U.S.C. § 1983 civil rights action. Because we lack subject matter
jurisdiction to entertain defendant’s appeal, we dismiss.
I. Background
A. Factual Background1
On July 24, 2009, Defendant Oklahoma City Police Officer Daniel Godsil
responded to a call at a convenience store regarding illegal activity. One suspect fled
from the area and was apprehended near plaintiff-appellee Wesley Moore’s house.
Moore, who had nothing to do with the convenience store incident, came out of his
house to watch the suspect’s arrest. Moore’s mother, Mrs. Maxine Moore, also came out
of her residence next door to plaintiff’s house. Mrs. Moore informed her son that she
needed to go to the pharmacy to retrieve some medication. At this point, Mrs. Moore had
room to pull her vehicle out of her driveway. However, before Mrs. Moore could pull her
car out of her driveway, another police car pulled up and blocked her exit from her
driveway. This police car was driven by Officer Burton, and it parked parallel to Officer
Godsil’s car. Officer Godsil estimated that the two police cars were stopped in this
manner for a “couple of minutes, a few minutes.”
Moore approached another police officer at the scene, Officer Garrett, who was
standing near Officer Burton’s and Officer Godsil’s cars. Moore asked Officer Garrett if
1
The following facts are taken as the district court found them.
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the police officers could move the police car blocking the driveway (Officer Burton’s car)
so that Mrs. Moore could leave to pick up her prescription medication. Officer Garrett
told Moore to “wait a minute” or “give him a minute.”
Soon thereafter, Moore observed his mother trying to drive over the curb in an
attempt to drive her car out of the driveway, despite the obstructing presence of the police
car. After observing his mother’s actions, Moore entered the street and began walking
towards Officer Burton’s car in order to ask the police officers to move the police car
blocking his mother’s driveway. In response, Officer Godsil ordered Moore to exit the
roadway. Moore was standing in the road, close to the curb, when this order was given.
It is unclear how many times Officer Godsil gave this order to Moore.
Moore subsequently argued with Officer Godsil about whether the road was part of
Moore’s property. Officer Godsil then placed Moore under arrest for interfering with an
official process by disobeying a lawful command. Moore estimated it was “a few
minutes” between the time the second car blocked his mother’s driveway and the time he
was arrested.
B. Procedural Background
On December 29, 2010, Moore brought this action against Officer Godsil and the
City of Oklahoma City. The case was originally filed in state court, but was removed
to the United States District Court for the Western District of Oklahoma on January
28, 2011. Moore brought a claim against Officer Godsil under 42 U.S.C §1983 alleging
that Officer Godsil violated Moore’s constitutional and civil rights by falsely arresting
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him.
On December 1, 2011, Officer Godsil filed a Motion for Summary Judgment (the
“motion”). The district court denied the motion on January 23, 2012. In reaching its
holding, the district court stated:
[T]he Court finds that there are disputed issues of material fact
which prevent this Court from being able to determine whether Officer
Godsil had probable cause to believe that plaintiff disobeyed a lawful
command of a police officer in the discharge of his duties. Having
reviewed the evidence submitted, the Court finds that it is disputed and/or
unclear as to (1) how many times Officer Godsil ordered plaintiff to exit
the roadway; (2) where specifically plaintiff was standing each time
Officer Godsil ordered plaintiff to exit the roadway; (3) whether plaintiff
was blocking the open portion of the roadway, and (4) whether there was
any traffic on the street at the time of the incident. The Court finds
a resolution of these disputed facts is necessary to determine whether
Officer Godsil’s order to plaintiff to exit the roadway was a lawful
command of a police officer in the discharge of his duties.
Regarding Officer Godsil’s argument that he was entitled to qualified immunity on
Moore’s §1983 claim, the district court stated:
[T]he Court finds that there are disputed issues of material fact which
prevent this Court from being able to determine whether Officer Godsil had
probable cause to believe that Plaintiff disobeyed a lawful command of a
police officer in the discharge of his duties. The Court further finds that
these same disputed issues of material fact prevent the Court from being
able to determine whether it would have been clear to a reasonable officer
that probable cause was lacking under the circumstances, i.e. that the
constitutional right at issue was clearly established in this specific situation.
Accordingly, the Court finds that summary judgment is not appropriate on
the grounds of qualified immunity.
On January 24, 2012, Officer Godsil appealed the district court’s denial of
qualified immunity.
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II. Discussion
A. Qualified Immunity
Qualified immunity protects public officials performing discretionary functions
unless their conduct violates “clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818,
102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity leaves “ample room for
mistaken judgments,” protecting “all but the plainly incompetent or those who knowingly
violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271
(1986).
When a defendant seeks summary judgment on the basis of qualified immunity,
the burden shifts to the plaintiff to meet a strict two-part test. “First, the plaintiff must
demonstrate that the defendant’s actions violated a constitutional or statutory right.
Second, the plaintiff must show that the constitutional or statutory rights the defendant
allegedly violated were clearly established at the time of the conduct at issue.” Nelson v.
McMullen, 207 F.3d 1202, 1206 (10th. Cir. 2000). Only if the plaintiff makes this
two-part showing does the burden then shift back to the defendant to demonstrate “that
there are no genuine issues of material fact and that he or she is entitled to judgment as a
matter of law.” Id.
B. Jurisdiction
We review issues of subject matter jurisdiction de novo. United States ex rel.
Hafter D.O. v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir. 1999).
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Federal courts are courts of limited jurisdiction. Therefore, “we presume no jurisdiction
exists absent an adequate showing by the party invoking federal jurisdiction. If
jurisdiction is challenged, the burden is on the party claiming jurisdiction to show it by a
preponderance of the evidence.” Id. (citations omitted).
An order denying summary judgment is a collateral order subject to immediate
appeal where (1) the defendant raised a qualified immunity defense, and (2) the issue
appealed concerns, not which facts might be provable, but whether certain facts establish
the violation of clearly established law. Mitchell v. Forsyth, 472 U.S. 511, 527-28, 105
S.Ct. 2806, 86 L.Ed.2d 411 (1985). An order denying qualified immunity is appealable
before trial only if it involves “neat abstract issues of law.” Johnson v. Jones, 515 U.S.
304, 317, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (quotations omitted); see also Gross v.
Pirtle, 245 F.3d 1151, 1156 (10th Cir. 2001). When a district court’s denial of qualified
immunity rests on the existence of genuine material disputes of fact, the order is not
immediately appealable. See Gross, 245 F.3d at 1156 (courts “clearly lack jurisdiction to
review summary judgment orders deciding qualified immunity questions solely on the
basis of evidence sufficiency”) (quotation omitted); Armijo ex rel. Chavez v. Wagon
Mound Pub. Sch., 159 F.3d 1253, 1259 (10th Cir. 1998) (“where the district court makes
a legal finding and states specific facts upon which that finding is based, we do not have
jurisdiction to delve behind the ruling and review the record to determine if the district
court correctly interpreted those facts to find a genuine dispute”).
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C. Analysis
In this case, the right asserted by plaintiff is the Fourth Amendment right to be free
from arrest without probable cause. “Probable cause to arrest exists where, under the
totality of the circumstances, a reasonable person would believe that an offense has been
committed by the person arrested.” Morris v. Noe, 672 F.3d 1185, 1192 (10th Cir. 2012)
(internal citations omitted). The probable cause inquiry is an objective one. Id. “An
arrest is not invalid under the Fourth Amendment simply because the police officer
subjectively intended to base the arrest on an offense for which probable cause is lacking,
so long as ‘the circumstances, viewed objectively, justify’ the arrest.” Howards v.
McLaughlin, 634 F.3d 1131, 1142 (10th Cir. 2011) (quoting Devenpeck v. Alford, 543
U.S. 146, 153 (2004)). “That is, an arrest is lawful as long as probable cause exists for
some offense.” Morris, 672 F.3d at 1192.
The district court held that genuine disputes of material facts prevented the court
from finding that Officer Godsil had probable cause to arrest plaintiff, and we agree.
Here, the district court specifically noted the conflicting material facts related to the
incident and articulated how these conflicting facts prevented a finding of probable cause.
Viewing the facts in the light most favorable to plaintiff as the nonmoving party, which
the court must do when considering summary judgment, a reasonable officer could have
believed that he did not have probable cause to arrest plaintiff under clearly established
law. See Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165
F.3d 1321, 1326 (10th Cir.), cert. denied, 528 U.S. 815, 120 S.Ct. 53, 145 L.Ed.2d 46
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(1999). Therefore, genuine issues of material fact prevent the court from finding that
there was probable cause to arrest plaintiff.
Given the facts and law described above, the district court correctly stated that
“disputed issues of material fact prevent the [c]ourt from being able to determine whether
it would have been clear to a reasonable officer that probable cause was lacking under the
circumstances, i.e. that the constitutional right at issue was clearly established in this
specific situation.” Aplt. App. 646. Accordingly, genuine material disputed facts prevent
a finding that defendant breached his duty under the Fourth Amendment or is entitled to
qualified immunity.
Because this court cannot “review the record to determine if the district court
correctly interpreted th[e] facts to find a genuine dispute,” we lack subject matter
jurisdiction to entertain this appeal. Armijo, 159 F.3d at 1259; see also Gross, 245 F.3d at
1158 (holding that when appellate review “would necessitate an assessment of the district
court's evidentiary conclusions, we must dismiss [defendants’] appeal of the district
court’s decision” denying qualified immunity).
III. Conclusion
For the foregoing reasons, the appeal of Daniel Godsil is DISMISSED.
Entered for the Court
William J. Martínez
United States District Judge
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12-6022, Moore v. City of Oklahoma City
HOLMES, Circuit Judge, concurring in the judgment.
I respectfully concur in the judgment. I agree with the majority that the appeal
should be dismissed for lack of subject-matter jurisdiction. The proponent of subject-
matter jurisdiction has the burden to establish it. See, e.g., Raley v. Hyundai Motor Co.,
642 F.3d 1271, 1275 (10th Cir. 2011) (“Where an appellant fails to lead, we have no duty
to follow. It is the appellant’s burden, not ours, to conjure up possible theories to invoke
our legal authority to hear her appeal.”). In my view, Officer Godsil has failed to do this.
The district court expressly set forth what it considered to be genuine disputes of
material fact that caused it to deny Officer Godsil’s motion for summary judgment. I do
not need to agree with the district court’s assessment of the factual landscape. Indeed, it
would not be appropriate for me to second-guess that assessment. See, e.g., Clanton v.
Cooper, 129 F.3d 1147, 1153 (10th Cir. 1997). It suffices for me to observe that, absent
some cogent argument from Officer Godsil to the contrary, see, e.g., York v. City of Las
Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008) (“Our jurisdiction also extends to situations
where a defendant claims on appeal that accepting the plaintiff’s version of the facts as
true, he is still entitled to qualified immunity.”), under controlling precedent, it
ineluctably follows from the district court’s resolution of Officer Godsil’s motion that we
must dismiss this appeal for lack of subject-matter jurisdiction, see, e.g., Fogarty v.
Gallegos, 523 F.3d 1147, 1154 (10th Cir. 2008); Gross v. Pirtle, 245 F.3d 1151, 1156
(10th Cir. 2001). Officer Godsil makes no such argument in his opening brief under the
rubric of jurisdiction. See Aplt. Opening Br. at 2 (“[T]his court’s jurisdiction necessarily
includes reviewing the record to determine whether there is a genuine issue for trial.”
(emphasis added)). And he only does modestly better—notably, in late-blooming
fashion—in his reply brief. See Aplt. Reply Br. at 4–5. In my view, Officer Godsil has
not carried his burden on the critical, threshold question of jurisdiction. Accordingly, this
matter should be dismissed. I thus respectfully concur in the judgment.
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