Appellate Case: 22-1126 Document: 010110811186 Date Filed: 02/10/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 10, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
WILLIAM MONTGOMERY,
Plaintiff - Appellant,
v. No. 22-1126
(D.C. No. 1:20-CV-03600-PAB-MEH)
STEVEN GERDJIKIAN; ADAM (D. Colo.)
HUGHES; CHAD WARNER; SEAN
MITCHELL,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McHUGH, and ROSSMAN, Circuit Judges.
_________________________________
William Montgomery brought this pro se civil rights action under 42 U.S.C.
§ 1983 against the defendants, who are police officers for the City of Aurora,
Colorado. He alleged the defendants violated his constitutional rights by detaining
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Appellate Case: 22-1126 Document: 010110811186 Date Filed: 02/10/2023 Page: 2
him without reasonable suspicion or probable cause. The district court dismissed the
action based on qualified immunity. We affirm.1
BACKGROUND
Mr. Montgomery alleges the defendants improperly detained him so he could
be issued a notice banning him for a year from a shopping mall.2 The magistrate
judge summarized the facts of his amended complaint as follows:
Plaintiff alleges that on December 7, 2018, he was standing on
private property owned by the Town Center at Aurora Mall (“the Mall”).
Plaintiff was holding a cardboard sign “signifying to patrons of the mall his
generic need for support and assistance.” He contends alternatively either
that Aurora Police contacted mall security to alert them to Plaintiff’s
1
Because Mr. Montgomery appears pro se in this appeal we construe his
filings liberally but do not serve as his advocate. See Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). Our “broad reading of [Mr. Montgomery’s] complaint
does not relieve [him] of the burden of alleging sufficient facts on which a
recognized legal claim could be based.” Id.
2
Mr. Montgomery’s complaint alleges that officers Hughes, Warner, and
Mitchell acted with Officer Gerdjikian in detaining him. But the only specific
alleged actions by these officers described in the complaint were that
Mr. Montgomery was detained “in front of” them, R. at 70; that the officers joined in
a discussion between Mr. Montgomery and Officer Gerdjikian “and its attendant
detainment,” id. at 73; and that the officers witnessed the encounter and “had the
opportunity to intervene and stop [Officer] Gerdjikian from further infringing on
[Mr. Montgomery’s] rights,” but failed to do so, id. at 84. In district court, the
defendants argued that officers Hughes, Warner, and Mitchell should be dismissed
for lack of personal participation. The magistrate judge concluded this argument was
moot because Mr. Montgomery had failed to adequately allege the violation of a
constitutional right. On review, the district court noted Mr. Montgomery’s failure to
object to the recommendation that these three defendants be dismissed, and it
reviewed the recommended dismissal of these officers under a clear error standard.
We need not determine whether Mr. Montgomery should have specifically objected
to their dismissal to preserve an issue concerning these officers. Mr. Montgomery’s
claims against the other officers fail for the same reasons as his claims against
Officer Gerdjikian.
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presence, or that mall security contacted Aurora Police to request assistance
regarding Plaintiff.
At approximately 4:32 p.m., several mall security guards approached
Plaintiff and engaged him in conversation, informing him that the Mall
considered him in violation of their no-solicitation policy, and was issuing
him a one-year ban from entering or remaining on the property. This was
Plaintiff’s first contact with mall security. Plaintiff describes this encounter
as congenial. He alleges that [he] did not refuse to leave the property, but
he did object to the ban. He hoped to return to the property as a customer
in the future.
A few minutes into the conversation, Defendant Gerdjikian, an
Aurora Police Officer, arrived, followed a few minutes later by Defendants
Hughes, Warner, and Mitchell, fellow Aurora Police Officers. Defendant
Gerdjikian engaged Plaintiff in conversation, but his fellow Defendants did
not. They remained nearby and observed the encounter. Defendant
Gerdjikian asked for Plaintiff’s name and identification, which he refused
to provide. Plaintiff indicated to Defendants that he did not object to
leaving the property or not soliciting there, but that he wanted to be able to
return to shop at the Mall. Plaintiff alleges that during the conversation,
Defendant Gerdjikian spoke into his radio, positively identifying Plaintiff
by name and reputation, even though Plaintiff had not identified himself.
During the encounter, Plaintiff attempted to leave the property and
exit the conversation, but he was stopped by Defendant Gerdjikian, who
told him that he was not free to leave until he was issued a written ban
notice from mall security. At this point, Plaintiff’s transcript of the
encounter includes several requests by Plaintiff to “Let go of me!” This
suggests that Defendant Gerdjikian grabbed or restrained Plaintiff to
prevent him from leaving, but Plaintiff does not specifically allege in his
amended complaint that physical restraint occurred. However, Plaintiff
does state in his Response that he was “physically grabbed by [Defendant
Gerdjikian] about six minutes into the encounter.” In light of that
statement, the Court accepts for present purposes that Defendant Gerdjikian
used some degree of physical contact to detain Plaintiff. Plaintiff objected
to his detention and asked for an explanation of Defendant Gerdjikian’s
justification. Defendant Gerdjikian answered that mall security had
requested assistance in removing Plaintiff from the property. Defendant
Gerdjikian never indicated that mall security had specifically informed him
that Plaintiff was trespassing or that he had refused to leave.
From the time that Defendant Gerdjikian prevented Plaintiff from
leaving, sixteen minutes elapsed before he was released and was issued his
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written ban notice. During the detention, Defendants apparently identified
Plaintiff through other means. Plaintiff was on public property when he
was released, although it is unclear at what point he moved from the Mall’s
property to public property.
R. at 136-37 (citations omitted).
The defendants moved to dismiss the complaint based on qualified immunity.
The magistrate judge recommended granting the motion to dismiss because the
complaint did not allege the violation of a constitutional right, and because even if
there was a constitutional violation the defendants did not violate clearly established
law. Mr. Montgomery objected to this recommendation, reasoning (1) he had already
left private property when he was detained, therefore the defendants did not have a
reasonable suspicion to detain him for trespassing; and (2) it is clearly established
that law enforcement officers lack the authority to detain people to issue them notices
banning them from private property. The district court overruled his objections;
accepted the recommendation; concluded that the officers were entitled to qualified
immunity on the second, clearly established prong; and dismissed the case with
prejudice.
DISCUSSION
“We review Rule 12(b)(6) dismissals and qualified-immunity rulings
de novo.” Frey v. Town of Jackson, 41 F.4th 1223, 1232 (10th Cir. 2022).
When a defendant raises qualified immunity in his motion to
dismiss, we engage in a two-part analysis. We must decide (1) whether the
plaintiff plausibly alleged a violation of a constitutional right, and (2) if so,
whether that right was clearly established at the time of the alleged
violation. We may address either prong first to achieve the fair and
efficient disposition of each case.
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Id. (citations and internal quotation marks omitted).
We need not determine whether the complaint plausibly alleges the violation
of a constitutional right, because Mr. Montgomery fails to show that the officers’
actions violated clearly established law. “To demonstrate that a right is clearly
established, a plaintiff must identify an on-point Supreme Court or published Tenth
Circuit decision, or show that the clearly established weight of authority from other
courts has found the law to be as the plaintiff maintains.” Bledsoe v. Carreno,
53 F.4th 589, 607 (10th Cir. 2022) (internal quotation marks omitted). “While the
Supreme Court has repeatedly told courts not to define clearly established law at a
high level of generality, it has also explained that officials can still be on notice that
their conduct violates established law even in novel factual circumstances.” Surat v.
Klamser, 52 F.4th 1261, 1276 (10th Cir. 2022) (internal quotation marks omitted).
But even so, “the clearly established law must be particularized to the facts of the
case” and cannot simply invoke an “extremely abstract right[].” Id. (internal
quotation marks omitted).
Qualified immunity ensures that “before they are subjected to suit, officers are
on notice their conduct is unlawful.” Bledsoe, 53 F.4th at 607 (internal quotation
marks omitted). Thus, “existing law must have placed the constitutionality of the
officer’s conduct beyond debate.” Surat, 52 F.4th at 1276 (internal quotation marks
omitted). “This demanding standard protects all but the plainly incompetent or those
who knowingly violate the law.” Id. (internal quotation marks omitted).
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The issue we must resolve is whether it was clearly established on December
7, 2018, that detaining an individual for approximately 16 minutes to issue him a
trespass warning would violate his constitutional rights. To show that this law was
clearly established at the time of his detention, Mr. Montgomery cites several Florida
court decisions that have concluded the issuance of a trespass warning under a
Florida statute—which is similar to the Aurora, Colorado municipal trespassing
ordinance applicable to this case—does not justify an investigative detention.3
Instead, a stop for issuance of the warning is considered “a consensual encounter,”
because until the warning has been given and disobeyed, no trespass has yet
occurred. See, e.g., Moore v. State, 200 So. 3d 1290, 1292 (Fla. Dist. Ct. App. 2016).
It follows that “the officer may issue a verbal warning, or he may issue a written
warning if the individual voluntarily decides to remain in order to receive a written
warning.” Id. But, according to these courts, the officer may not detain an individual
merely to permit the officer (or the owner of the premises) to issue a written warning.
Mr. Montgomery also cites an unpublished Nevada federal district court case holding
3
The Aurora, Colorado trespass ordinance at issue here provides as follows:
A person commits trespass if that person . . . [e]nters upon or refuses to
leave any private property of another, when immediately prior to such entry
or refusal to leave oral or written notice is given by the owner, a police
officer or firefighter acting in the course of his or her employment or person
responsible for the care of the property that such entry or continued
presence is prohibited.
R. at 179-80 (quoting Aurora Mun. Code § 94-71(a)(2)).
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that extending a detention to permit a private party to read an individual a trespass
warning violated that individual’s clearly established constitutional rights. McCall v.
Las Vegas Metro. Police Dep’t, No. 2:18-cv-01319-APG-EJY, 2020 WL 1433579
(D. Nev. Mar. 23, 2020), aff’d, 2021 WL 3667720 (9th Cir. Aug. 18, 2021).
These cases fall short of clearly establishing the law. They are not on-point
Supreme Court or published Tenth Circuit decisions, nor do they demonstrate that the
clearly established weight of authority is as Mr. Montgomery claims. See Bledsoe,
53 F.4th at 607.4
Mr. Montgomery argues McCall should persuade us because it applied a
Supreme Court case, Florida v. Royer, 460 U.S. 491 (1983), “to clearly establish the
premise that detaining a suspect for the sole purpose of issuing them a private
property banning notice violates the Fourth Amendment.” Aplt. Opening Br. at 7
(internal quotation marks omitted). He contends we should follow the McCall
court’s lead and deny qualified immunity based on Royer.
If Royer itself put the defendants sufficiently on notice that their conduct was
unconstitutional, it could qualify as clearly established law. But the facts and
holding in Royer are significantly different from those of this case. Royer involved a
custodial interrogation and search, without probable cause or consent, that clearly
4
In addition, McCall itself could not have clearly established the law at the
time of Mr. Montgomery’s detention, because McCall was not issued until
approximately fifteen months after the defendants allegedly detained him.
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exceeded the limits of an investigative detention. 460 U.S. at 494-95, 501. No such
circumstances are present here.
Finally, Mr. Montgomery argues that it is “obvious the conduct at issue
violates the U.S. Constitution,” so prior case law directly on point is not required.
Aplt. Opening Br. at 3. But we cannot conclude that the defendants’ conduct was so
egregious that the general, clearly established precedent requiring reasonable
suspicion applied with “obvious clarity” to the facts of this case. Hope v. Pelzer,
536 U.S. 730, 741 (2002). Several particularized facts blur the illegality of their
conduct under those general principles. First, the Aurora ordinance expressly
authorizes officers to issue verbal or written trespass warnings. Second, the
ordinance indicates no preference for the type of warning (verbal or written) the
officer may provide. Third, the officer’s issuance of a warning serves a law
enforcement purpose because it may actually prevent a crime from occurring if the
person who is warned heeds the warning and avoids trespassing on private property.
Fourth, the issuance of a written warning would serve to formalize the Mall
employees’ verbal indications to Mr. Montgomery that he was going to be banned
from the premises, which he had debated with those employees. The written warning
would therefore clarify the legal situation of the parties in a situation where the
officers might have been imminently called on to enforce the law. Finally, the
approximately 16-minute detention was not unreasonably extended, given the need to
prepare and issue the written warning. Under these circumstances, we cannot say
that even without prior case law on point to clearly establish the law, “existing law
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[had] placed the constitutionality of the officer’s conduct beyond debate.” Surat,
52 F.4th at 1276 (internal quotation marks omitted).
CONCLUSION
We affirm the district court’s judgment of dismissal.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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